House v. Bell, 126 S.Ct. 2064 (U.S. 06/12/2006)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 04-8990


[3] 126 S.Ct. 2064


[4] June 12, 2006


[5] PAUL GREGORY HOUSE, PETITIONER
v.
RICKY BELL, WARDEN


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM 2005


[8] Argued January 11, 2006


[9] A Tennessee jury convicted petitioner House of Carolyn Muncey's murder and sentenced him to death. The State's case included evidence that FBI testing showing semen consistent (or so it seemed) with House's on Mrs. Muncey's clothing and small bloodstains consistent with her blood but not House's on his jeans. In the sentencing phase, the jury found, inter alia, the aggravating factor that the murder was committed while House was committing, attempting to commit, or fleeing from the commission of rape or kidnaping. In affirming, the State Supreme Court described the evidence as circumstantial but strong. House was denied state post-conviction relief. Subsequently, the Federal District Court denied habeas relief, deeming House's claims procedurally defaulted and granting the State summary judgment on most of his claims. It also found, after an evidentiary hearing at which House attacked the blood and semen evidence and presented other evidence, including a putative confession, suggesting that Mr. Muncey committed the crime, that House did not fall within the "actual innocence" exception to procedural default recognized in Schlup v. Delo, 513 U. S. 298, and Sawyer v. Whitley, 505 U. S. 333. The Sixth Circuit ultimately affirmed.


[10] Held:


[11] 1. Because House has made the stringent showing required by the actual-innocence exception, his federal habeas action may proceed. Pp. 16-34.


[12] (a) To implement the general principle that "comity and finality `must yield to the imperative of correcting a fundamentally unjust incarceration,' " Murray v. Carrier, 477 U. S. 478, 495, this Court has ruled that prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup, 513 U. S, at 327. Several features of Schlup's standard bear emphasis here. First, while the gateway claim requires "new reliable evidence ... not presented at trial," id., at 324, the habeas court must assess the likely impact of " `all the evidence' " on reasonable jurors, id., at 329. Second, rather than requiring absolute certainty about guilt or innocence, a petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt. Finally, this standard is "by no means equivalent to the standard of Jackson v. Virginia, 443 U. S. 307," which governs insufficient evidence claims, id., at 330. Rather, because a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record. See ibid. Contrary to the State's arguments, the standard of review in two provisions of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U. S. C. §§2244(b)(2)(B)(ii) and 2254(e)(2), is inapplicable here. In addition, because the standard does not address a "district court's independent judgment as to whether reasonable doubt exists," Schlup, supra, at 329, a ruling in House's favor does not require the showing of clear error as to the District Court's specific findings. It is with these principles in mind that the evidence developed in House's federal habeas proceedings should be evaluated. Pp. 16-20.


[13] (b) In direct contradiction of evidence presented at trial, DNA testing has established that semen on Mrs. Muncey's clothing came from her husband, not House. While the State claims that the evidence is immaterial since neither sexual contact nor motive were elements of the offense at the guilt phase, this Court considers the new disclosure of central importance. This case is about who committed the crime, so motive is key, and the prosecution at the guilt phase referred to evidence at the scene suggesting that House committed, or attempted to commit, an indignity on Mrs. Muncey. Apart from proving motive, this was the only forensic evidence at the scene that would link House to the murder. Law and society demand accountability for a sexual offense, so the evidence was also likely a factor in persuading the jury not to let him go free. At sentencing, moreover, the jury concluded that the murder was committed in the course of a rape or kidnaping. A jury acting without the assumption that the semen could have come from House would have found it necessary to establish some different motive, or, if the same motive, an intent far more speculative. Pp. 20-22.


[14] (c) The evidentiary disarray surrounding the other forensic evidence, the bloodstains on House's pants, taken together with the testimony of an Assistant Chief Medical Examiner for the State of Tennessee, would prevent reasonable jurors from placing significant reliance on the blood evidence. The medical examiner who testified believes the blood on the jeans must have come from the autopsy samples. In addition, a vial and a quarter of autopsy blood is unaccounted for; the blood was transported to the FBI together with the pants in conditions that could have caused the vials to spill; some blood did spill at least once during the blood's journey from Tennessee authorities through FBI hands to a defense expert; the pants were stored in a plastic bag bearing a large bloodstain and a label from a Tennessee Bureau of Investigation agent; and the box containing the blood samples may have been opened before arriving at the FBI lab. None of this evidence was presented to the trial jury. Whereas the bloodstains seemed strong evidence of House's guilt at trial, the record now raises substantial questions about the blood's origin. Pp. 22-28.


[15] (d) In the post-trial proceedings, House presented troubling evidence that Mr. Muncey could have been the murderer. Two witnesses described a confession by Mr. Muncey; two others described suspicious behavior (a fight between the couple and Mr. Muncey's attempt to construct a false alibi) around the time of the crime; and others described a history of spousal abuse. Considered in isolation, a reasonable jury might well disregard this evidence, but in combination with the challenges to the blood evidence and lack of motive with respect to House, evidence pointing to Mr. Muncey likely would reinforce other doubts as to House's guilt. Pp. 28-33.


[16] (e) The Assistant Chief Medical Examiner further testified that certain injuries discovered on House after the crime likely did not result from involvement in the murder. Certain other evidence -- Mrs. Muncey's daughter's recollection of the night of the murder, and the District Court's finding at the habeas proceeding that House was not a credible witness -- may favor the State. Pp. 33-34.


[17] (f) While this is not a case of conclusive exoneration, and the issue is close, this is the rare case where -- had the jury heard all the conflicting testimony -- it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt. P. 34.


[18] 2. House has not shown freestanding innocence that would render his imprisonment and planned execution unconstitutional under Herrera v. Collins, 506 U. S. 390, in which the Court assumed without deciding that "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim," id., at 417. The threshold showing for such a right would be extraordinarily high, and House has not satisfied whatever burden a hypothetical freestanding innocence claim would require. He has cast doubt on his guilt sufficient to satisfy Schlup's gateway standard for obtaining federal review, but given the closeness of the Schlup question here, his showing falls short of the threshold implied in Herrera. Pp. 34-36.


[19] 386 F. 3d 668, reversed and remanded.


[20] Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which Scalia and Thomas, JJ., joined. Alito, J., took no part in the consideration or decision of the case.


[21] On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Court Below: 386 F. 3d 668


[22] Stephen Michael Kissinger argued the cause for petitioner. With him on the briefs were George H. Kendall, Theodore M. Shaw, and Jacqueline A. Berrien.


[23] Jennifer L. Smith, Associate Deputy Attorney General of Tennessee, argued the cause for respondent. With her on the brief were Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, Gordon W. Smith, Associate Solicitor General, and Alice B. Lustre.


[24] Briefs of amici curiae urging reversal were filed for the American Bar Association by Michael S. Greco, Rory K. Little, and Seth P. Waxman; for Former Prosecutors et al. by Andrew H. Schapiro, Timothy C. Lambert, George H. Kendall, and Miriam Gohara; and for the Innocence Project, Inc., by David Goldberg.


[25] A brief of amici curiae urging affirmance was filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Patrick J. Whalen, Deputy Attorney General, and Ward A. Campbell, Supervising Deputy Attorney General, by Christopher L. Morano, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Mike Beebe of Arkansas, John W. Suthers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, Charles C. Foti, Jr., of Louisiana, Jim Hood of Mississippi, Mike McGrath of Montana, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, Greg Abbott of Texas, and Rob McKenna of Washington.


[26] The opinion of the court was delivered by: Justice Kennedy


[27] 547 U. S. ____ (2006)


[28] Some 20 years ago in rural Tennessee, Carolyn Muncey was murdered. A jury convicted petitioner Paul Gregory House of the crime and sentenced him to death, but new revelations cast doubt on the jury's verdict. House, protesting his innocence, seeks access to federal court to pursue habeas corpus relief based on constitutional claims that are procedurally barred under state law. Out of respect for the finality of state-court judgments federal habeas courts, as a general rule, are closed to claims that state courts would consider defaulted. In certain exceptional cases involving a compelling claim of actual innocence, however, the state procedural default rule is not a bar to a federal habeas corpus petition. See Schlup v. Delo, 513 U. S. 298, 319-322 (1995). After careful review of the full record, we conclude that House has made the stringent showing required by this exception; and we hold that his federal habeas action may proceed.


[29] I.


[30] We begin with the facts surrounding Mrs. Muncey's disappearance, the discovery of her body, and House's arrest. Around 3 p.m. on Sunday, July 14, 1985, two local residents found her body concealed amid brush and tree branches on an embankment roughly 100 yards up the road from her driveway. Mrs. Muncey had been seen last on the evening before, when, around 8 p.m., she and her two children -- Lora Muncey, age 10, and Matthew Muncey, age 8 -- visited their neighbor, Pam Luttrell. According to Luttrell, Mrs. Muncey mentioned her husband, William Hubert Muncey, Jr., known in the community as "Little Hube" and to his family as "Bubbie." As Luttrell recounted Mrs. Muncey's comment, Mr. Muncey "had gone to dig a grave, and he hadn't come back, but that was all right, because [Mrs. Muncey] was going to make him take her fishing the next day," App. 11-12. Mrs. Muncey returned home, and some time later, before 11:00 p.m. at the latest, Luttrell "heard a car rev its motor as it went down the road," something Mr. Muncey customarily did when he drove by on his way home. Record, Addendum 4, 5 Tr. of Evidence in No. 378 (Crim. Ct. Union County, Tenn.) 641-642 (hereinafter Tr.). Luttrell then went to bed.


[31] Around 1 a.m., Lora and Matthew returned to Luttrell's home, this time with their father, Mr. Muncey, who said his wife was missing. Muncey asked Luttrell to watch the children while he searched for his wife. After he left, Luttrell talked with Lora. According to Luttrell:


[32] "[Lora] said she heard a horn blow, she thought she heard a horn blow, and somebody asked if Bubbie was home, and her mama, you know, told them -- no. And then she said she didn't know if she went back to sleep or not, but then she heard her mama going down the steps crying and I am not sure if that is when she told me that she heard her mama say -- oh God, no, not me, or if she told me that the next day, but I do know that she said she heard her mother going down the steps crying." App. 14-15.


[33] While Lora was talking, Luttrell recalled, "Matt kept butting in, you know, on us talking, and he said -- sister they said daddy had a wreck, they said daddy had a wreck." Id., at 13.


[34] At House's trial, Lora repeated her account of the night's events, this time referring to the "wreck" her brother had mentioned. To assist in understanding Lora's account, it should be noted that Mrs. Muncey's father-in-law -- Little Hube's father -- was sometimes called "Big Hube." Lora and her brother called him "Paw Paw." We refer to him as Mr. Muncey, Sr. According to Lora, Mr. Muncey, Sr. had a deep voice, as does petitioner House.


[35] Lora testified that after leaving Luttrell's house with her mother, she and her brother "went to bed." Id., at 18. Later, she heard someone, or perhaps two different people, ask for her mother. Lora's account of the events after she went to bed was as follows:


[36] "QLaura [sic], at some point after you got back home and you went to bed, did anything happen that caused your mother to be upset or did you hear anything?


[37] "AWell, it sounded like PawPaw said -- where's daddy at, and she said digging a grave.


[38] "QOkay. Do you know if it was PawPaw or not, or did it sound like PawPaw?


[39] "AIt just sounded like PawPaw.


[40] "QAnd your mother told him what?


[41] "AThat he was digging a grave.


[42] "QHad you ever heard that voice before that said that?


[43] "AI don't remember.


[44] "QAfter that, at some point later, did you hear anything else that caused your mother to be upset?


[45] "AWell, they said that daddy had a wreck down the road and she started crying -- next to the creek.


[46] "QYour mother started crying. What was it that they said?


[47] "AThat daddy had a wreck.


[48] "QDid they say where?


[49] "ADown there next to the creek." Id., at 18-19.


[50] Lora did not describe hearing any struggle. Some time later, Lora and her brother left the house to look for their mother, but no one answered when they knocked at the Luttrells' home, and another neighbor, Mike Clinton, said he had not seen her. After the children returned home, according to Lora, her father came home and "fixed him a bologna sandwich and he took a bit of it and he says -- sissy, where is mommy at, and I said -- she ain't been here for a little while." Id., at 20. Lora recalled that Mr. Muncey went outside and, not seeing his wife, returned to take Lora and Matthew to the Luttrells' so that he could look further.


[51] The next afternoon Billy Ray Hensley, the victim's first cousin, heard of Mrs. Muncey's disappearance and went to look for Mr. Muncey. As he approached the Munceys' street, Hensley allegedly "saw Mr. House come out from under a bank, wiping his hands on a black rag." Id., at 32. Just when and where Hensley saw House, and how well he could have observed him, were disputed at House's trial. Hensley admitted on cross-examination that he could not have seen House "walking up or climbing up" the embankment, id., at 39; rather, he saw House, in "[j]ust a glance," id., at 40, "appear out of nowhere," "next to the embankment," id., at 39. On the Munceys' street, opposite the area where Hensley said he saw House, a white Plymouth was parked near a sawmill. Another witness, Billy Hankins, whom the defense called, claimed that around the same time he saw a "boy" walking down the street away from the parked Plymouth and toward the Munceys' home. This witness, however, put the "boy" on the side of the street with the parked car and the Munceys' driveway, not the side with the embankment.


[52] Hensley, after turning onto the Munceys' street, continued down the road and turned into their driveway. "I pulled up in the driveway where I could see up toward Little Hube's house," Hensley testified, "and I seen Little Hube's car wasn't there, and I backed out in the road, and come back [the other way]." Id., at 32. As he traveled up the road, Hensley saw House traveling in the opposite direction in the white Plymouth. House "flagged [Hensley] down" through his windshield, ibid., and the two cars met about 300 feet up the road from the Munceys' driveway. According to Hensley, House said he had heard Mrs. Muncey was missing and was looking for her husband. Id., at 33. Though House had only recently moved to the area, he was acquainted with the Munceys, had attended a dance with them, and had visited their home. He later told law enforcement officials he considered both of the Munceys his friends. According to Hensley, House said he had heard that Mrs. Muncey's husband, who was an alcoholic, was elsewhere "getting drunk." Ibid.


[53] As Hensley drove off, he "got to thinking to [him]self -- he's hunting Little Hube, and Little Hube drunk -- what would he be doing off that bank ... ." Ibid. His suspicion aroused, Hensley later returned to the Munceys' street with a friend named Jack Adkins. The two checked different spots on the embankment, and though Hensley saw nothing where he looked, Adkins found Mrs. Muncey. Her body lay across from the sawmill near the corner where House's car had been parked, dumped in the woods a short way down the bank leading toward a creek.


[54] Around midnight, Dr. Alex Carabia, a practicing pathologist and county medical examiner, performed an autopsy. Dr. Carabia put the time of death between 9 and 11 p.m. Mrs. Muncey had a black eye, both her hands were bloodstained up to the wrists, and she had bruises on her legs and neck. Dr. Carabia described the bruises as consistent with a "traumatic origin," i.e., a fight or a fall on hard objects. 7 id., at 985-986. Based on the neck bruises and other injuries, he concluded Mrs. Muncey had been choked, but he ruled this out as the cause of death. The cause of death, in Dr. Carabia's view, was a severe blow to the left forehead that inflicted both a laceration penetrating to the bone and, inside the skull, a severe right-side hemorrhage, likely caused by Mrs. Muncey's brain slamming into the skull opposite the impact. Dr. Carabia described this head injury as consistent either with receiving a blow from a fist or other instrument or with striking some object.


[55] The county sheriff, informed about Hensley's earlier encounter with House, questioned House shortly after the body was found. That evening, House answered further questions during a voluntary interview at the local jail. Special Agent Ray Presnell of the Tennessee Bureau of Investigation (TBI) prepared a statement of House's answers, which House signed. Asked to describe his whereabouts on the previous evening, House claimed -- falsely, as it turned out -- that he spent the entire evening with his girlfriend, Donna Turner, at her trailer. Asked whether he was wearing the same pants he had worn the night before, House replied -- again, falsely -- that he was. House was on probation at the time, having recently been released on parole following a sentence of five years to life for aggravated sexual assault in Utah. House had scratches on his arms and hands, and a knuckle on his right ring finger was bruised. He attributed the scratches to Turner's cats and the finger injury to recent construction work tearing down a shed. The next day House gave a similar statement to a different TBI agent, Charles Scott.


[56] In fact House had not been at Turner's home. After initially supporting House's alibi, Turner informed authorities that House left her trailer around 10:30 or 10:45 p.m. to go for a walk. According to Turner's trial testimony, House returned later -- she was not sure when -- hot and panting, missing his shirt and his shoes. House, Turner testified, told her that while he was walking on the road near her home, a vehicle pulled up beside him, and somebody inside "called him some names and then they told him he didn't belong here anymore." App. 89. House said he tried to ignore the taunts and keep walking, but the vehicle pulled in behind him, and "one of them got out and grabbed him by the shoulder ... and [House] swung around with his right hand" and "hit something." Ibid. According to Turner, House said "he took off down the bank and started running and he said that he -- he said it seemed forever where he was running. And he said they fired two shots at him while he took off down the bank ... ." Ibid. House claimed the assailants "grabbed ahold of his shirt," which Turner remembered as "a blue tank top, trimmed in yellow," and "they tore it to where it wouldn't stay on him and he said -- I just throwed it off when I was running." Id., at 91. Turner, noticing House's bruised knuckle, asked how he hurt it, and House told her "that's where he hit." Id., at 90. Turner testified that she "thought maybe my ex-husband had something to do with it." Ibid.


[57] Although the white Plymouth House drove the next day belonged to Turner, Turner insisted House had not used the car that night. No forensic evidence connected the car to the crime; law enforcement officials inspected a white towel covering the driver seat and concluded it was clean. Turner's trailer was located just under two miles by road, through hilly terrain, from the Muncey residence.


[58] Law enforcement officers also questioned the victim's husband. Though Mrs. Muncey's comments to Luttrell gave no indication she knew this, Mr. Muncey had spent the evening at a weekly dance at a recreation center roughly a mile and a half from his home. In his statement to law enforcement -- a statement House's trial counsel claims he never saw -- Mr. Muncey admitted leaving the dance early, but said it was only for a brief trip to the package store to buy beer. He also stated that he and his wife had had sexual relations Saturday morning.


[59] Late in the evening on Monday, July 15 -- two days after the murder -- law enforcement officers visited Turner's trailer. With Turner's consent, Agent Scott seized the pants House was wearing the night Mrs. Muncey disappeared. The heavily soiled pants were sitting in a laundry hamper; years later, Agent Scott recalled noticing "reddish brown stains" he "suspected" were blood. Id., at 274-275. Around 4 p.m. the next day, two local law enforcement officers set out for the Federal Bureau of Investigation in Washington, D. C., with House's pants, blood samples from the autopsy, and other evidence packed together in a box. They arrived at 2:00 a.m. the next morning. On July 17, after initial FBI testing revealed human blood on the pants, House was arrested.


[60] II.


[61] The State of Tennessee charged House with capital murder. At House's trial, the State presented testimony by Luttrell, Hensley, Adkins, Lora Muncey, Dr. Carabia, the sheriff, and other law enforcement officials. Through TBI Agents Presnell and Scott, the jury learned of House's false statements. Central to the State's case, however, was what the FBI testing showed --that semen consistent (or so it seemed) with House's was present on Mrs. Muncey's nightgown and panties, and that small bloodstains consistent with Mrs. Muncey's blood but not House's appeared on the jeans belonging to House.


[62] Regarding the semen, FBI Special Agent Paul Bigbee, a serologist, testified that the source was a "secretor," meaning someone who "secrete[s] the ABO blood group substances in other body fluids, such as semen and saliva" -- a characteristic shared by 80 percent of the population, including House. Id., at 55. Agent Bigbee further testified that the source of semen on the gown was blood-type A, House's own blood type. As to the semen on the panties, Agent Bigbee found only the H blood-group substance, which A and B blood-type secretors secrete along with substances A and B, and which O-type secretors secrete exclusively. Agent Bigbee explained, however --using science an amicus here sharply disputes, see Brief for Innocence Project, Inc., as Amicus Curiae 24-26 -- that House's A antigens could have "degraded" into H, App. 57-58. Agent Bigbee thus concluded that both semen deposits could have come from House, though he acknowledged that that the H antigen could have come from Mrs. Muncey herself if she was a secretor --something he "was not able to determine," id., at 58 -- and that, while Mr. Muncey was himself blood-type A (as was his wife), Agent Bigbee was again "not able to determine his secretor status," id., at 57. Agent Bigbee acknowledged on cross-examination that "a saliva sample" would have sufficed to determine whether Mr. Muncey was a secretor; the State did not provide such a sample, though it did provide samples of Mr. Muncey's blood. Id., at 62.


[63] As for the blood, Agent Bigbee explained that "spots of blood" appeared "on the left outside leg, the right bottom cuff, on the left thigh and in the right inside pocket and on the lower pocket on the outside." Id., at 48. Agent Bigbee determined that the blood's source was type A (the type shared by House, the victim, and Mr. Muncey). He also successfully tested for the enzyme phosphoglucomutase and the blood serum haptoglobin, both of which "are found in all humans" and carry "slight chemical differences" that vary genetically and "can be grouped to differentiate between two individuals if those types are different." Id., at 49-50. Based on these chemical traces and on the A blood type, Agent Bigbee determined that only some 6.75 percent of the population carry similar blood, that the blood was "consistent" with Mrs. Muncey's (as determined by testing autopsy samples), and that it was "impossible" that the blood came from House. Id., at 48-52.


[64] A different FBI expert, Special Agent Chester Blythe, testified about fiber analysis performed on Mrs. Muncey's clothes and on House's pants. Although Agent Blythe found blue jean fibers on Mrs. Muncey's nightgown, brassier, housecoat, and panties, and in fingernail scrapings taken from her body (scrapings that also contained trace, unidentifiable amounts of blood), he acknowledged that, as the prosecutor put it in questioning the witness, "blue jean material is common material," so "this doesn't mean that the fibers that were all over the victim's clothing were necessarily from [House's] pair of blue jeans." 6 Tr. 864-865. On House's pants, though cotton garments both transfer and retain fibers readily, Agent Blythe found neither hair nor fiber consistent with the victim's hair or clothing.


[65] In the defense case House called Hankins, Clinton, and Turner, as well as House's mother, who testified that House had talked to her by telephone around 9:30 p.m. on the night of the murder and that he had not used her car that evening. House also called the victim's brother, Ricky Green, as a witness. Green testified that on July 2, roughly two weeks before the murder, Mrs. Muncey called him and "said her and Little Hube had been into it and she said she was wanting to leave Little Hube, she said she was wanting to get out -- out of it, and she was scared." 7 id., at 1088. Green recalled that at Christmastime in 1982 he had seen Mr. Muncey strike Mrs. Muncey after returning home drunk.


[66] As Turner informed the jury, House's shoes were found several months after the crime in a field near her home. Turner delivered them to authorities. Though the jury did not learn of this fact (and House's counsel claims he did not either), the State tested the shoes for blood and found none. House's shirt was not found.


[67] The State's closing argument suggested that on the night of her murder, Mrs. Muncey "was deceived ... . She had been told [her husband] had had an accident." 9 id., at 1226. The prosecutor emphasized the FBI's blood analysis, noting that "after running many, many, many tests," Agent Bigbee:


[68] "was able to tell you that the blood on the defendant's blue jeans was not his own blood, could not be his own blood. He told you that the blood on the blue jeans was consistent with every characteristic in every respect of the deceased's, Carolyn Muncey's, and that ninety-three (93%) percent of the white population would not have that blood type... . He can't tell you one hundred (100%) percent for certain that it was her blood. But folks, he can sure give you a pretty good -- a pretty good indication." Id., at 1235-1236.


[69] In the State's rebuttal, after defense counsel questioned House's motive "to go over and kill a woman that he barely knew[,] [w]ho was still dressed, still clad in her clothes," Id., at 1274, the prosecutor referred obliquely to the semen stains. While explaining that legally "it does not make any difference under God's heaven, what the motive was," App. 106, the prosecutor told the jury, "you may have an idea why he did it," ibid.:


[70] "The evidence at the scene which seemed to suggest that he was subjecting this lady to some kind of indignity, why would you get a lady out of her house, late at night, in her night clothes, under the trick that her husband has had a wreck down by the creek? ... Well, it is because either you don't want her to tell what indignities you have subjected her to, or she is unwilling and fights against you, against being subjected to those indignities. In other words, it is either to keep her from telling what you have done to her, or it is that you are trying to get her to do something that she nor any mother on that road would want to do with Mr. House, under those conditions, and you kill her because of her resistance. That is what the evidence at the scene suggests about motive." Id., at 106-107.


[71] In addition the government suggested the black rag Hensley said he saw in House's hands was in fact the missing blue tank top, retrieved by House from the crime scene. And the prosecution reiterated the importance of the blood. "[D]efense counsel," he said, "does not start out discussing the fact that his client had blood on his jeans on the night that Carolyn Muncey was killed... . He doesn't start with the fact that nothing that the defense has introduced in this case explains what blood is doing on his jeans, all over his jeans, that is scientifically, completely different from his blood." Id., at 104-105. The jury found House guilty of murder in the first degree.


[72] The trial advanced to the sentencing phase. As aggravating factors to support a capital sentence, the State sought to prove: (1) that House had previously been convicted of a felony involving the use or threat of violence; (2) that the homicide was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; and (3) that the murder was committed while House was committing, attempting to commit, or fleeing from the commission of, rape or kidnaping. See Tenn. Code Ann. §§39-2-203(i)(2), (5), (7) (1982) (repealed 1989); compare §§39-13-204(i)(2), (5), (7) (2003). After presenting evidence of House's parole status and aggravated sexual assault conviction, the State rested. As mitigation, the defense offered testimony from House's father and mother, as well as evidence, presented through House's mother, that House attempted suicide after the guilt-phase verdict. Before the attempt House wrote his mother a letter professing his innocence.


[73] In closing the State urged the jury to find all three aggravating factors and impose death. As to the kidnaping or rape factor, the prosecution suggested Mrs. Muncey was "decoy[ed] or entic[ed] ... away from her family, and confin[ed] her against her will because you know that as she was being beaten to death." 10 Tr. 1410. "We also think," the prosecutor added, "the proof shows strong evidence of attempted sexual molestation of the victim to accompany the taking away and murdering her." Id., at 1410-1411. Later the prosecutor argued, "I think the proof shows in the record that it is more likely than not that having been through the process before and having been convicted of a crime involving the threat of violence, or violence to another person, aggravated sexual assault, that the defendant cannot benefit from the type of rehabilitation that correction departments can provide." Id., at 1413. The jury unanimously found all three aggravating factors and concluded "there are no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating circumstance or circumstances." Id., at1454. The jury recommended a death sentence, which the trial judge imposed.


[74] III.


[75] The Tennessee Supreme Court affirmed House's conviction and sentence, describing the evidence against House as "circumstantial" but "quite strong." State v. House, 743 S. W. 2d 141, 143, 144 (1987). Two months later, in a state trial court, House filed a pro se petition for post-conviction relief, arguing he received ineffective assistance of counsel at trial. The court appointed counsel, who amended the petition to raise other issues, including a challenge to certain jury instructions. At a hearing before the same judge who conducted the trial, House's counsel offered no proof beyond the trial transcript. The trial court dismissed the petition, deeming House's trial counsel adequate and overruling House's other objections. On appeal House's attorney renewed only the jury-instructions argument. In an unpublished opinion the Tennessee Court of Criminal Appeals affirmed, and both the Tennessee Supreme Court and this Court, House v. Tennessee, 498 U. S. 912 (1990), denied review.


[76] House filed a second post-conviction petition in state court reasserting his ineffective-assistance claim and seeking investigative and/or expert assistance. After extensive litigation regarding whether House's claims were procedurally defaulted the Tennessee Supreme Court held that House's claims were barred under a state statute providing that claims not raised in prior post-conviction proceedings are presumptively waived, Tenn. Code Ann. §40-30-112 (1990) (repealed 1995), and that courts may not consider grounds for relief "which the court finds should be excluded because they have been waived or previously determined," §40-30-111 (repealed 1995). See House v. State, 911 S. W. 2d 705 (Tenn. 1995). This Court denied certiorari. House v. Tennessee, 517 U. S. 1193 (1996).


[77] House next sought federal habeas relief, asserting numerous claims of ineffective assistance of counsel and prosecutorial misconduct. The United States District Court for the Eastern District of Tennessee, though deeming House's claims procedurally defaulted and granting summary judgment to the State on the majority of House's claims, held an evidentiary hearing to determine whether House fell within the "actual innocence" exception to procedural default that this Court recognized as to substantive offenses in Schlup and as to death sentences in Sawyer v. Whitley, 505 U. S. 333 (1992). Presenting evidence we describe in greater detail below, House attacked the semen and blood evidence used at his trial and presented other evidence, including a putative confession, suggesting that Mr. Muncey, not House, committed the murder. The District Court nevertheless denied relief, holding that House had neither demonstrated actual innocence of the murder under Schlup nor established that he was ineligible for the death penalty under Sawyer.


[78] The Court of Appeals for the Sixth Circuit granted a certificate of appealability under 28 U. S. C. §2253(c) as to all claims in the habeas petition. On the merits a divided panel affirmed, but its opinion was withdrawn and the case taken en banc. A divided en banc court certified state-law questions to the Tennessee Supreme Court. House v. Bell, 311 F. 3d 767 (CA6 2002). Concluding that House had made a compelling showing of actual innocence, and recognizing that in Herrera v. Collins, 506 U. S. 390 (1993), this Court assumed without deciding that "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim," id., at 417, the six-judge majority certified questions to the State Supreme Court, 311 F. 3d, at 777-778. The questions sought "to ascertain whether there remains a `state avenue open to process such a claim' in this case." Id., at 768. Four dissenting judges argued the court should have reached the merits, rather than certifying questions to the state court; these judges asserted that House could not obtain relief under Schlup, let alone Sawyer and Herrera. 311 F. 3d, at 780-781 (Boggs, J., dissenting). A fifth dissenter explained that while he agreed with the majority that House "presents a strong claim for habeas relief, at least at the sentencing phase of the case," he objected to the certification of questions to the Tennessee high court. Id., at 787 (opinion of Gilman, J.). This Court denied certiorari. Bell v. House, 539 U. S. 937 (2003).


[79] The State urged the Tennessee Supreme Court not to answer the Court of Appeals' certified questions, and the state court did not do so. The case returned to the United States Court of Appeals for the Sixth Circuit. This time an eight-judge majority affirmed the District Court's denial of habeas relief. 386 F. 3d 668 (2004). Six dissenters argued that House not only had met the actual innocence standard for overcoming procedural default but also was entitled to immediate release under Herrera. 386 F. 3d, at 708 (Merritt, J., dissenting). A seventh dissenter (the same judge who wrote separately in the previous en banc decision) described the case as "a real-life murder mystery, an authentic `who-done-it' where the wrong man may be executed." Id., at 709 (opinion of Gilman, J.). He concluded such grave uncertainty necessitated relief in the form of a new trial for House. Id., at 710.


[80] We granted certiorari, 545 U. S. ___ (2005), and now reverse.


[81] IV.


[82] As a general rule, claims forfeited under state law may support federal habeas relief only if the prisoner demonstrates cause for the default and prejudice from the asserted error. See Murray v. Carrier, 477 U. S. 478, 485 (1986); Engle v. Isaac, 456 U. S. 107, 129 (1982); Wainwright v. Sykes, 433 U. S. 72, 87 (1977). The rule is based on the comity and respect that must be accorded to state-court judgments. See, e.g., Engle, supra, at 126-129; Wainwright, supra, at 89-90. The bar is not, however, unqualified. In an effort to "balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case," Schlup, 513 U. S., at 324, the Court has recognized a miscarriage-of-justice exception. " `[I]n appropriate cases,' " the Court has said, "the principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally unjust incarceration,' " Carrier, supra, at 495 (quoting Engle, supra, at 135).


[83] In Schlup, the Court adopted a specific rule to implement this general principle. It held that prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." 513 U. S., at 327. This formulation, Schlup explains, "ensures that petitioner's case is truly `extraordinary,' while still providing petitioner a meaningful avenue by which to avoid a manifest injustice." Ibid. (quoting McCleskey v. Zant, 499 U. S. 467, 494 (1991)). In the usual case the presumed guilt of a prisoner convicted in state court counsels against federal review of defaulted claims. Yet a petition supported by a convincing Schlup gateway showing "raise[s] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error"; hence, "a review of the merits of the constitutional claims" is justified. 513 U. S., at 317.


[84] For purposes of this case several features of the Schlup standard bear emphasis. First, although "[t]o be credible" a gateway claim requires "new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial," id., at 324, the habeas court's analysis is not limited to such evidence. There is no dispute in this case that House has presented some new reliable evidence; the State has conceded as much, see infra, at 20-21. In addition, because the District Court held an evidentiary hearing in this case, and because the State does not challenge the court's decision to do so, we have no occasion to elaborate on Schlup's observation that when considering an actual-innocence claim in the context of a request for an evidentiary hearing, the District Court need not "test the new evidence by a standard appropriate for deciding a motion for summary judgment," but rather may "consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." 513 U. S., at 331-332. Our review in this case addresses the merits of the Schlup inquiry, based on a fully developed record, and with respect to that inquiry Schlup makes plain that the habeas court must consider " `all the evidence,' " old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under "rules of admissibility that would govern at trial." See id., at 327-328 (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). Based on this total record, the court must make "a probabilistic determination about what reasonable, properly instructed jurors would do." 513 U. S., at 329. The court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors. Ibid.


[85] Second, it bears repeating that the Schlup standard is demanding and permits review only in the " `extraordinary' " case. Id., at 327 (quoting Zant, supra, at 494); see also 513 U. S., at 324 (emphasizing that "in the vast majority of cases, claims of actual innocence are rarely successful"). At the same time, though, the Schlup standard does not require absolute certainty about the petitioner's guilt or innocence. A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt -- or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.


[86] Finally, as the Schlup decision explains, the gateway actual-innocence standard is "by no means equivalent to the standard of Jackson v. Virginia, 443 U. S. 307 (1979)," which governs claims of insufficient evidence. Id., at 330. When confronted with a challenge based on trial evidence, courts presume the jury resolved evidentiary disputes reasonably so long as sufficient evidence supports the verdict. Because a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record. See ibid. If new evidence so requires, this may include consideration of "the credibility of the witnesses presented at trial." Ibid.; see also ibid. (noting that "[i]n such a case, the habeas court may have to make some credibility assessments").


[87] As an initial matter, the State argues that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, has replaced the Schlup standard with a stricter test based on Sawyer, which permits consideration of successive, abusive, or defaulted sentencing-related claims only if the petitioner "show[s] by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law," 505 U. S., at 336. One AEDPA provision establishes a similar standard for second or successive petitions involving no retroactively applicable new law, 28 U. S. C. §2244(b)(2)(B)(ii); another sets it as a threshold for obtaining an evidentiary hearing on claims the petitioner failed to develop in state court, §2254(e)(2). Neither provision addresses the type of petition at issue here -- a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence. Thus, the standard of review in these provisions is inapplicable. Cf. Lonchar v. Thomas, 517 U. S. 314, 324 (1996) ("[D]ismissal of a first federal habeas petition is a particularly serious matter").


[88] The State also argues that the District Court's findings in this case tie our hands, precluding a ruling in House's favor absent a showing of clear error as to the District Court's specific determinations. This view overstates the effect of the District Court's ruling. Deference is given to a trial court's assessment of evidence presented to it in the first instance. Yet the Schlup inquiry, we repeat, requires a holistic judgment about " `all the evidence,' " 513 U. S., at 328 (quoting Friendly, supra, at 160), and its likely effect on reasonable jurors applying the reasonable-doubt standard. As a general rule, the inquiry does not turn on discrete findings regarding disputed points of fact, and "[i]t is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses," 513 U. S., at 329. Here, although the District Court attentively managed complex proceedings, carefully reviewed the extensive record, and drew certain conclusions about the evidence, the court did not clearly apply Schlup's predictive standard regarding whether reasonable jurors would have reasonable doubt. As we shall explain, moreover, we are uncertain about the basis for some of the District Court's conclusions -- a consideration that weakens our reliance on its determinations.


[89] With this background in mind we turn to the evidence developed in House's federal habeas proceedings.


[90] DNA Evidence


[91] First, in direct contradiction of evidence presented at trial, DNA testing has established that the semen on Mrs. Muncey's nightgown and panties came from her husband, Mr. Muncey, not from House. The State, though conceding this point, insists this new evidence is immaterial. At the guilt phase at least, neither sexual contact nor motive were elements of the offense, so in the State's view the evidence, or lack of evidence, of sexual assault or sexual advance is of no consequence. We disagree. In fact we consider the new disclosure of central importance.


[92] From beginning to end the case is about who committed the crime. When identity is in question, motive is key. The point, indeed, was not lost on the prosecution, for it introduced the evidence and relied on it in the final guilt-phase closing argument. Referring to "evidence at the scene," the prosecutor suggested that House committed, or attempted to commit, some "indignity" on Mrs. Muncey that neither she "nor any mother on that road would want to do with Mr. House." 9 Tr. 1302-1303. Particularly in a case like this where the proof was, as the State Supreme Court observed, circumstantial, State v. House, 743 S. W. 2d, at 143, 144, we think a jury would have given this evidence great weight. Quite apart from providing proof of motive, it was the only forensic evidence at the scene that would link House to the murder.


[93] Law and society, as they ought to do, demand accountability when a sexual offense has been committed, so not only did this evidence link House to the crime; it likely was a factor in persuading the jury not to let him go free. At sentencing, moreover, the jury came to the unanimous conclusion, beyond a reasonable doubt, that the murder was committed in the course of a rape or kidnaping. The alleged sexual motivation relates to both those determinations. This is particularly so given that, at the sentencing phase, the jury was advised that House had a previous conviction for sexual assault.


[94] A jury informed that fluids on Mrs. Muncey's garments could have come from House might have found that House trekked the nearly two miles to the victim's home and lured her away in order to commit a sexual offense. By contrast a jury acting without the assumption that the semen could have come from House would have found it necessary to establish some different motive, or, if the same motive, an intent far more speculative. When the only direct evidence of sexual assault drops out of the case, so, too, does a central theme in the State's narrative linking House to the crime. In that light, furthermore, House's odd evening walk and his false statements to authorities, while still potentially incriminating, might appear less suspicious.


[95] Bloodstains


[96] The other relevant forensic evidence is the blood on House's pants, which appears in small, even minute, stains in scattered places. As the prosecutor told the jury, they were stains that, due to their small size, "you or I might not detect[,] [m]ight not see, but which the FBI lab was able to find on [House's] jeans." App. 11. The stains appear inside the right pocket, outside that pocket, near the inside button, on the left thigh and outside leg, on the seat of the pants, and on the right bottom cuff, including inside the pants. Due to testing by the FBI, cuttings now appear on the pants in several places where stains evidently were found. (The cuttings were destroyed in the testing process, and defense experts were unable to replicate the tests.) At trial, the government argued "nothing that the defense has introduced in this case explains what blood is doing on his jeans, all over [House's] jeans, that is scientifically, completely different from his blood." Id., at 105. House, though not disputing at this point that the blood is Mrs. Muncey's, now presents an alternative explanation that, if credited, would undermine the probative value of the blood evidence.


[97] During House's habeas proceedings, Dr. Cleland Blake, an Assistant Chief Medical Examiner for the State of Tennessee and a consultant in forensic pathology to the TBI for 22 years, testified that the blood on House's pants was chemically too degraded, and too similar to blood collected during the autopsy, to have come from Mrs. Muncey's body on the night of the crime. The blood samples collected during the autopsy were placed in test tubes without preservative. Under such conditions, according to Dr. Blake, "you will have enzyme degradation. You will have different blood group degradation, blood marker degradation." Record, Doc. 275, p. 80 (hereinafter R275:80). The problem of decay, moreover, would have been compounded by the body's long exposure to the elements, sitting outside for the better part of a summer day. In contrast, if blood is preserved on cloth, "it will stay there for years," ibid.; indeed, Dr. Blake said he deliberately places blood drops on gauze during autopsies to preserve it for later testing. The blood on House's pants, judging by Agent Bigbee's tests, showed "similar deterioration, breakdown of certain of the named numbered enzymes" as in the autopsy samples. Id., at 110. "[I]f the victim's blood had spilled on the jeans while the victim was alive and this blood had dried," Dr. Blake stated, "the deterioration would not have occurred," ibid., and "you would expect [the blood on the jeans] to be different than what was in the tube," id., at 113. Dr. Blake thus concluded the blood on the jeans came from the autopsy samples, not from Mrs. Muncey's live (or recently killed) body.


[98] Other evidence confirms that blood did in fact spill from the vials. It appears the vials passed from Dr. Carabia, who performed the autopsy, into the hands of two local law enforcement officers, who transported it to the FBI, where Agent Bigbee performed the enzyme tests. The blood was contained in four vials, evidently with neither preservative nor a proper seal. The vials, in turn, were stored in a styrofoam box, but nothing indicates the box was kept cool. Rather, in what an evidence protocol expert at the habeas hearing described as a violation of proper procedure, the styrofoam box was packed in the same cardboard box as other evidence including House's pants (apparently in a paper bag) and other clothing (in separate bags). The cardboard box was then carried in the officers' car while they made the 10-hour journey from Tennessee to the FBI lab. Dr. Blake stated that blood vials in hot conditions (such as a car trunk in the summer) could blow open; and in fact, by the time the blood reached the FBI it had hemolyzed, or spoiled, due to heat exposure. By the time the blood passed from the FBI to a defense expert, roughly a vial and a half were empty, though Agent Bigbee testified he used at most a quarter of one vial. Blood, moreover, had seeped onto one corner of the styrofoam box and onto packing gauze inside the box below the vials.


[99] In addition, although the pants apparently were packaged initially in a paper bag and FBI records suggest they arrived at the FBI in one, the record does not contain the paper bag but does contain a plastic bag with a label listing the pants and Agent Scott's name -- and the plastic bag has blood on it. The blood appears in a forked streak roughly five inches long and two inches wide running down the bag's outside front. Though testing by House's expert confirmed the stain was blood, the expert could not determine the blood's source. Speculations about when and how the blood got there add to the confusion regarding the origins of the stains on House's pants.


[100] Faced with these indications of, at best, poor evidence control, the State attempted to establish at the habeas hearing that all blood spillage occurred after Agent Bigbee examined the pants. Were that the case, of course, then blood would have been detected on the pants before any spill -- which would tend to undermine Dr. Blake's analysis and support using the bloodstains to infer House's guilt. In support of this theory the State put on testimony by a blood spatter expert who believed the "majority" of the stains were "transfer stains," that is, stains resulting from "wip[ing] across the surface of the pants" rather than seeping or spillage. App. 293-294. Regarding the spillage in the styrofoam box, the expert noted that yellow "Tennessee Crime Laboratory" tape running around the box and down all four sides did not line up when the bloodstains on the box's corner were aligned. The inference was that the FBI received the box from Tennessee authorities, opened it, and resealed it before the spillage occurred. Reinforcing this theory, Agent Bigbee testified that he observed no blood spillage in the styrofoam box and that had he detected such signs of evidence contamination, FBI policy would have required immediate return of the evidence.


[101] In response House argued that even assuming the tape alignment showed spillage occurring after FBI testing, spillage on one or more earlier occasions was likely. In fact even the State's spatter expert declined to suggest the blood in the box and on the packing gauze accounted for the full vial and a quarter missing. And when the defense expert opened the box and discovered the spills, the bulk of the blood-caked gauze was located around and underneath the half-full vial, which was also located near the stained corner. No gauze immediately surrounding the completely empty vial was stained. The tape, moreover, circled the box in two layers, one underneath the other, and in one spot the underlying layer stops cleanly at the lid's edge, as if cut with a razor, and does not continue onto the body of the box below. In House's view this clean cut suggests the double layers could not have resulted simply from wrapping the tape around twice, as the spatter expert claimed; rather, someone possessing Tennessee Crime Lab tape -- perhaps the officers transporting the blood and pants -- must have cut the box open and resealed it, possibly creating an opportunity for spillage. Supporting the same inference, a label on the box's lid lists both blood and vaginal secretions as the box's contents, though Agent Bigbee's records show the vaginal fluids arrived at the FBI in a separate envelope. Finally, cross-examination revealed that Agent Bigbee's practice did not always match the letter of FBI policy. Although Mrs. Muncey's bra and housecoat were packed together in a single bag, creating, according to Agent Bigbee, a risk of "cross contamination," id., at 286, he did not return them; nor did he note the discrepancy between the "[b]lood and [v]aginal secretions" label and the styrofoam box's actual contents, though he insisted his customary practice was to match labels with contents immediately upon opening an evidence box. Id., at 287.


[102] The State challenged Dr. Blake's scientific conclusions, and to do so it called Agent Bigbee as a witness. Agent Bigbee defended the testimony he had given at the trial. To begin with, he suggested Dr. Blake had misconstrued the term "inc" in Agent Bigbee's trial report, interpreting it to mean "incomplete" when it in fact meant "inconclusive." Id., at 254-256, 282. Dr. Blake, however, replied "[s]ame difference" when asked whether his opinion would change if "inc" meant "inconclusive." Id., at 256; see also 6 Tr. 906 (Bigbee trial testimony) ("You will notice I have INC written under the transparent, that is the symbol that I use to mean the test was incomplete"). Agent Bigbee further asserted that, whereas Dr. Blake (in Bigbee's view) construed the results to mean the enzyme was not present at all, in fact the results indicated only that Bigbee could not identify the marker type on whatever enzymes were present. App. 282. Yet the State did not cross-examine Dr. Blake on this point, nor did the District Court resolve the dispute one way or the other, so on this record it seems possible that Dr. Blake meant only to suggest the blood was too degraded to permit conclusive typing. The State, moreover, does not ask us to question Dr. Blake's basic premise about the durability of blood chemicals deposited on cotton -- a premise Agent Bigbee appeared to accept as a general matter. Given the record as it stands, then, we cannot say Dr. Blake's conclusions have been discredited; if other objections might be adduced, they must await further proceedings. At the least, the record before us contains credible testimony suggesting that the missing enzyme markers are generally better preserved on cloth than in poorly kept test tubes, and that principle could support House's spillage theory for the blood's origin.


[103] In this Court, as a further attack on House's showing, the State suggests that, given the spatter expert's testimony, House's theory would require a jury to surmise that Tennessee officials donned the pants and deliberately spread blood over them. We disagree. This should be a matter for the trier of fact to consider in the first instance, but we can note a line of argument that could refute the State's position. It is correct that the State's spatter expert opined that the stains resulted from wiping or smearing rather than direct spillage; and she further stated that the distribution of stains in some spots suggests the pants were "folded in some manner or creased in some manner" when the transfers occurred, id., at 296. While the expert described this pattern, at least with respect to stains on the lap of the pants, as "consistent" with the pants being worn at the time of the staining, ibid., her testimony, as we understand it, does not refute the hypothesis that the packaging of the pants for transport was what caused them to be folded or creased. It seems permissible, moreover, to conclude that the small size and wide distribution of stains -- inside the right pocket, outside that pocket, near the inside button, on the left thigh and outside leg, on the seat of the pants, and on the right bottom cuff, including inside the pants -- fits as well with spillage in transport as with wiping and smearing from bloody objects at the crime scene, as the State proposes. (As has been noted, no blood was found on House's shoes.)


[104] The District Court discounted Dr. Blake's opinion, not on account of Blake's substantive approach, but based on testimony from Agent Scott indicating he saw, as the District Court put it, "what appeared to be bloodstains on Mr. House's blue jeans when the jeans were removed from the laundry hamper at Ms. Turner's trailer." Id., at 348. This inference seems at least open to question, however. Agent Scott stated only that he "saw reddish brownish stains [he] suspected to be blood"; he admitted that he "didn't thoroughly examine the blue jeans at that time." R276:113-114. The pants were in fact extensively soiled with mud and reddish stains, only small portions of which are blood.


[105] In sum, considering " `all the evidence,' " Schlup, 513 U. S., at 328 (quoting Friendly, 38 U. Chi. L. Rev., at 160), on this issue, we think the evidentiary disarray surrounding the blood, taken together with Dr. Blake's testimony and the limited rebuttal of it in the present record, would prevent reasonable jurors from placing significant reliance on the blood evidence. We now know, though the trial jury did not, that an Assistant Chief Medical Examiner believes the blood on House's jeans must have come from autopsy samples; that a vial and a quarter of autopsy blood is unaccounted for; that the blood was transported to the FBI together with the pants in conditions that could have caused vials to spill; that the blood did indeed spill at least once during its journey from Tennessee authorities through FBI hands to a defense expert; that the pants were stored in a plastic bag bearing both a large blood stain and a label with TBI Agent Scott's name; and that the styrofoam box containing the blood samples may well have been opened before it arrived at the FBI lab. Thus, whereas the bloodstains, emphasized by the prosecution, seemed strong evidence of House's guilt at trial, the record now raises substantial questions about the blood's origin.


[106] A Different Suspect


[107] Were House's challenge to the State's case limited to the questions he has raised about the blood and semen, the other evidence favoring the prosecution might well suffice to bar relief. There is, however, more; for in the post-trial proceedings House presented troubling evidence that Mr. Muncey, the victim's husband, himself could have been the murderer.


[108] At trial, as has been noted, the jury heard that roughly two weeks before the murder Mrs. Muncey's brother received a frightened phone call from his sister indicating that she and Mr. Muncey had been fighting, that she was scared, and that she wanted to leave him. The jury also learned that the brother once saw Mr. Muncey "smac[k]" the victim. 7 Tr. 1087-1088. House now has produced evidence from multiple sources suggesting that Mr. Muncey regularly abused his wife. For example, one witness -- Kathy Parker, a lifelong area resident who denied any animosity towards Mr. Muncey --recalled that Mrs. Muncey "was constantly with black eyes and busted mouth." App. 235. In addition Hazel Miller, who is Kathy Parker's mother and a lifelong acquaintance of Mr. Muncey, testified at the habeas hearing that two or three months before the victim's death Mr. Muncey came to Miller's home and "tried to get my daughter [Parker] to go out with him," R274:47. (Parker had dated Mr. Muncey at age 14.) According to Miller, Muncey said "[h]e was upset with his wife, that they had had an argument and he said he was going to get rid of that woman one way or the other." App. 236.


[109] Another witness -- Mary Atkins, also an area native who "grew up" with Mr. Muncey and professed no hard feelings, R274:10, 16 -- claims she saw Mr. Muncey "backhan[d]" Mrs. Muncey on the very night of the murder. App. 226, 228. Atkins recalled that during a break in the recreation center dance, she saw Mr. Muncey and his wife arguing in the parking lot. Mr. Muncey "grabbed her and he just backhanded her." Id., at 228. After that, Mrs. Muncey "left walking." Id., at 229. There was also testimony from Atkins' mother, named Artie Lawson. A self-described "good friend" of Mr. Muncey, id., at 231, Lawson said Mr. Muncey visited her the morning after the murder, before the body was found. According to Lawson, Mr. Muncey asked her to tell anyone who inquired not only that she had been at the dance the evening before and had seen him, but also that he had breakfasted at her home at 6 o'clock that morning. Lawson had not in fact been at the dance, nor had Mr. Muncey been with her so early.


[110] Of most importance is the testimony of Kathy Parker and her sister Penny Letner. They testified at the habeas hearing that, around the time of House's trial, Mr. Muncey had confessed to the crime. Parker recalled that she and "some family members and some friends [were] sitting around drinking" at Parker's trailer when Mr. Muncey "just walked in and sit down." R274:37. Muncey, who had evidently been drinking heavily, began "rambling off ... [t]alking about what happened to his wife and how it happened and he didn't mean to do it." Ibid. According to Parker, Mr. Muncey "said they had been into [an] argument and he slapped her and she fell and hit her head and it killed her and he didn't mean for it to happen." Id., at 38. Parker said she "freaked out and run him off." Ibid.


[111] Letner similarly recalled that at some point either "during [House's] trial or just before," id., at 30, Mr. Muncey intruded on a gathering at Parker's home. Appearing "pretty well blistered," Muncey "went to crying and was talking about his wife and her death and he was saying that he didn't mean to do it." App. 232. "[D]idn't mean to do what[?]," Letner asked, R274:33, at which point Mr. Muncey explained:


[112] "[S]he was `bitching him out' because he didn't take her fishing that night, that he went to the dance instead. He said when he come home that she was still on him pretty heavily `bitching him out' again and that he smacked her and that she fell and hit her head. He said I didn't mean to do it, but I had to get rid of her, because I didn't want to be charged with murder." App. 232-233.


[113] Letner, who was then 19 years old with a small child, said Mr. Muncey's statement "scared [her] quite badly," so she "got out of there immediately." Id., at 233. Asked whether she reported the incident to the authorities, Letner stated, "I was frightened, you know... . I figured me being 19 year old they wouldn't listen to anything I had to say." R274:31. Parker, on the other hand, claimed she (Parker) in fact went to the Sherriff's Department, but no one would listen:


[114] "I tried to speak to the Sheriff but he was real busy. He sent me to a deputy. The deputy told me to go upstairs to the courtroom and talk to this guy, I can't remember his name. I never did really get to talk to anybody." App. 234.


[115] Parker said she did not discuss the matter further because "[t]hey had it all signed, sealed and delivered. We didn't know anything to do until we heard that they reopened [House's] trial." R274:45. Parker's mother, Hazel Miller, confirmed she had driven Parker to the courthouse, where Parker "went to talk to some of the people about this case." App. 237.


[116] Other testimony suggests Mr. Muncey had the opportunity to commit the crime. According to Dennis Wallace, a local law enforcement official who provided security at the dance on the night of the murder, Mr. Muncey left the dance "around 10:00, 10:30, 9:30 to 10:30." R274:56-57. Although Mr. Muncey told law enforcement officials just after the murder that he left the dance only briefly and returned, Wallace could not recall seeing him back there again. Later that evening, Wallace responded to Mr. Muncey's report that his wife was missing. Muncey denied he and his wife had been "a fussing or a fighting"; he claimed his wife had been "kidnapped." Id., at 58. Wallace did not recall seeing any blood, disarray, or knocked-over furniture, although he admitted he "didn't pay too much attention" to whether the floor appeared especially clean. According to Wallace, Mr. Muncey said "let's search for her" and then led Wallace out to search "in the weeds" around the home and the driveway (not out on the road where the body was found). Id., at 58, 60, 63.


[117] In the habeas proceedings, then, two different witnesses (Parker and Letner) described a confession by Mr. Muncey; two more (Atkins and Lawson) described suspicious behavior (a fight and an attempt to construct a false alibi) around the time of the crime; and still other witnesses described a history of abuse.


[118] As to Parker and Letner, the District Court noted that it was "not impressed with the allegations of individuals who wait over ten years to come forward with their evidence," especially considering that "there was no physical evidence in the Munceys' kitchen to corroborate [Mr. Muncey's] alleged confession that he killed [his wife] there." App. 348. Parker and Letner, however, did attempt to explain their delay coming forward, and the record indicates no reason why these two women, both lifelong acquaintances of Mr. Muncey, would have wanted either to frame him or to help House. Furthermore, the record includes at least some independent support for the statements Parker and Letner attributed to Mr. Muncey. The supposed explanation for the fatal fight -- that his wife was complaining about going fishing -- fits with Mrs. Muncey's statement to Luttrell earlier that evening that her husband's absence was "all right, because she was going to make him take her fishing the next day," id., at 11-12. And Dr. Blake testified, in only partial contradiction of Dr. Carabia, that Mrs. Muncey's head injury resulted from "a surface with an edge" or "a hard surface with a corner," not from a fist. R275:72. (Dr. Carabia had said either a fist or some other object could have been the cause.)


[119] Mr. Muncey testified at the habeas hearing, and the District Court did not question his credibility. Though Mr. Muncey said he seemed to remember visiting Lawson the day after the murder, he denied either killing his wife or confessing to doing so. Yet Mr. Muncey also claimed, contrary to Constable Wallace's testimony and to his own prior statement, that he left the dance on the night of the crime only when it ended at midnight. Mr. Muncey, moreover, denied ever hitting Mrs. Muncey; the State itself had to impeach him with a prior statement on this point.


[120] It bears emphasis, finally, that Parker's and Letner's testimony is not comparable to the sort of eleventh-hour affidavit vouching for a defendant and incriminating a conveniently absent suspect that Justice O'Connor described in her concurring opinion in Herrera as "unfortunate" and "not uncommon" in capital cases, 506 U. S., at 423; nor was the confession Parker and Letner described induced under pressure of interrogation. The confession evidence here involves an alleged spontaneous statement recounted by two eyewitnesses with no evident motive to lie. For this reason it has more probative value than, for example, incriminating testimony from inmates, suspects, or friends or relations of the accused.


[121] The evidence pointing to Mr. Muncey is by no means conclusive. If considered in isolation, a reasonable jury might well disregard it. In combination, however, with the challenges to the blood evidence and the lack of motive with respect to House, the evidence pointing to Mr. Muncey likely would reinforce other doubts as to House's guilt.


[122] Other Evidence


[123] Certain other details were presented at the habeas hearing. First, Dr. Blake, in addition to testifying about the blood evidence and the victim's head injury, examined photographs of House's bruises and scratches and concluded, based on 35 years' experience monitoring the development and healing of bruises, that they were too old to have resulted from the crime. In addition Dr. Blake claimed that the injury on House's right knuckle was indicative of "[g]etting mashed"; it was not consistent with striking someone. R275:63. (That of course would also eliminate the explanation that the injury came from the blow House supposedly told Turner he gave to his unidentified assailant.)


[124] The victim's daughter, Lora Muncey (now Lora Tharp), also testified at the habeas hearing. She repeated her recollection of hearing a man with a deep voice like her grandfather's and a statement that her father had had a wreck down by the creek. She also denied seeing any signs of struggle or hearing a fight between her parents, though she also said she could not recall her parents ever fighting physically. The District Court found her credible, and this testimony certainly cuts in favor of the State.


[125] Finally, House himself testified at the habeas proceedings. He essentially repeated the story he allegedly told Turner about getting attacked on the road. The District Court found, however, based on House's demeanor, that he "was not a credible witness." App. 329.


[126] Conclusion


[127] This is not a case of conclusive exoneration. Some aspects of the State's evidence -- Lora Muncey's memory of a deep voice, House's bizarre evening walk, his lie to law enforcement, his appearance near the body, and the blood on his pants -- still support an inference of guilt. Yet the central forensic proof connecting House to the crime -- the blood and the semen --has been called into question, and House has put forward substantial evidence pointing to a different suspect. Accordingly, and although the issue is close, we conclude that this is the rare case where -- had the jury heard all the conflicting testimony -- it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.


[128] V.


[129] In addition to his gateway claim under Schlup, House argues that he has shown freestanding innocence and that as a result his imprisonment and planned execution are unconstitutional. In Herrera, decided three years before Schlup, the Court assumed without deciding that "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." 506 U. S., at 417; see also id., at 419 (O'Connor, J., concurring) ("I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution"). "[T]he threshold showing for such an assumed right would necessarily be extraordinarily high," the Court explained, and petitioner's evidence there fell "far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist." Id., at 417, 418-419; see also id., at 427 (O'Connor, J., concurring) (noting that because "[p]petitioner has failed to make a persuasive showing of actual innocence," "the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence"). House urges the Court to answer the question left open in Herrera and hold not only that freestanding innocence claims are possible but also that he has established one.


[130] We decline to resolve this issue. We conclude here, much as in Herrera, that whatever burden a hypothetical freestanding innocence claim would require, this petitioner has not satisfied it. To be sure, House has cast considerable doubt on his guilt -- doubt sufficient to satisfy Schlup's gateway standard for obtaining federal review despite a state procedural default. In Herrera, however, the Court described the threshold for any hypothetical freestanding innocence claim as "extraordinarily high." 506 U. S., at 417. The sequence of the Court's decisions in Herrera and Schlup --first leaving unresolved the status of freestanding claims and then establishing the gateway standard -- implies at the least that Herrera requires more convincing proof of innocence than Schlup. It follows, given the closeness of the Schlup question here, that House's showing falls short of the threshold implied in Herrera.


[131] House has satisfied the gateway standard set forth in Schlup and may proceed on remand with procedurally defaulted constitutional claims. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.


[132] It is so ordered.


[133] Justice Alito took no part in the consideration or decision of this case.


[134] Opinion of Roberts, C. J.


[135] Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, concurring in the judgment in part and dissenting in part.


[136] To overcome the procedural hurdle that Paul House created by failing to properly present his constitutional claims to a Tennessee court, he must demonstrate that the constitutional violations he alleges "ha[ve] probably resulted in the conviction of one who is actually innocent," such that a federal court's refusal to hear the defaulted claims would be a "miscarriage of justice." Schlup v. Delo, 513 U. S. 298, 326, 327 (1995) (internal quotation marks omitted). To make the requisite showing of actual innocence, House must produce "new reliable evidence" and "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id., at 324, 327 (emphasis added). The question is not whether House was prejudiced at his trial because the jurors were not aware of the new evidence, but whether all the evidence, considered together, proves that House was actually innocent, so that no reasonable juror would vote to convict him. Considering all the evidence, and giving due regard to the District Court's findings on whether House's new evidence was reliable, I do not find it probable that no reasonable juror would vote to convict him, and accordingly I dissent.


[137] Because I do not think that House has satisfied the actual innocence standard set forth in Schlup, I do not believe that he has met the higher threshold for a freestanding innocence claim, assuming such a claim exists. See Herrera v. Collins, 506 U. S. 390, 417 (1993). I therefore concur in the judgment with respect to the Court's disposition of that separate claim.


[138] I.


[139] In Schlup, we stated that a habeas petitioner attempting to present a defaulted claim to a federal court must present "new reliable evidence --whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." 513 U. S., at 324 (emphasis added). Implicit in the requirement that a habeas petitioner present reliable evidence is the expectation that a factfinder will assess reliability. The new evidence at issue in Schlup had not been subjected to such an assessment -- the claim in Schlup was for an evidentiary hearing -- and this Court specifically recognized that the "new statements may, of course, be unreliable." Id., at 331. The Court stated that the District Court, as the "reviewing tribunal," was tasked with assessing the "probative force" of the petitioner's new evidence of innocence, and "may have to make some credibility assessments." Id., at 327-328, 330. Indeed, the Supreme Court took the unusual step of remanding the case to the Court of Appeals "with instructions to remand to the District Court," so that the District Court could consider how the "likely credibility of the affiants" bears upon the "probable reliability" of the new evidence. Id., at 332. In short, the new evidence is not simply taken at face value; its reliability has to be tested.


[140] Critical to the Court's conclusion here that House has sufficiently demonstrated his innocence are three pieces of new evidence presented to the District Court: DNA evidence showing that the semen on Carolyn Muncey's clothing was from her husband, Hubert Muncey, not from House; testimony from new witnesses implicating Mr. Muncey in the murder; and evidence indicating that Mrs. Muncey's blood spilled from test tubes containing autopsy samples in an evidence container. To determine whether it should open its door to House's defaulted constitutional claims, the District Court considered this evidence in a comprehensive evidentiary hearing. As House presented his new evidence, and as the State rebutted it, the District Court observed the witnesses' demeanor, examined physical evidence, and made findings about whether House's new evidence was in fact reliable. This factfinding role is familiar to a district court. "The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise." Anderson v. Bessemer City, 470 U. S. 564, 574 (1985).


[141] The State did not contest House's new DNA evidence excluding him as the source of the semen on Mrs. Muncey's clothing, but it strongly contested the new testimony implicating Mr. Muncey, and it insisted that the blood spillage occurred after the FBI tested House's jeans and determined that they were stained with Mrs. Muncey's blood.


[142] At the evidentiary hearing, sisters Kathy Parker and Penny Letner testified that 14 years earlier, either during or around the time of House's trial, they heard Mr. Muncey drunkenly confess to having accidentally killed his wife when he struck her in their home during an argument, causing her to fall and hit her head. Record, Doc. 274, pp. 28-29, 30, 37-38. Schlup provided guidance on how a district court should assess this type of new evidence: The court "may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence," and it "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial." 513 U. S., at 332. Consistent with this guidance, the District Court concluded that the sisters' testimony was not credible. The court noted that it was "not impressed with the allegations of individuals who wait over ten years to come forward." App. 348. It also considered how the new testimony fit within the larger web of evidence, observing that Mr. Muncey's alleged confession contradicted the testimony of the Munceys' "very credible" daughter, Lora Tharp, who consistently testified that she did not hear a fight in the house that night, but instead heard a man with a deep voice who lured her mother from the house by saying that Mr. Muncey had been in a wreck near the creek. Id., at 323, 348.


[143] The District Court engaged in a similar reliability inquiry with regard to House's new evidence of blood spillage. At the evidentiary hearing, House conceded that FBI testing showed that his jeans were stained with Mrs. Muncey's blood, but he set out to prove that the blood spilled from test tubes containing autopsy samples, and that it did so before the jeans were tested by the FBI. The District Court summarized the testimony of the various witnesses who handled the evidence and their recollections about bloodstains and spillage; it acknowledged that House's expert, Dr. Cleland Blake, disagreed with FBI Agent Paul Bigbee about how to interpret the results of Agent Bigbee's genetic marker analysis summary; and it summarized the testimony of the State's blood spatter expert, Paulette Sutton. Id., at 339-347. After reviewing all the evidence, the District Court stated: "Based upon the evidence introduced during the evidentiary hearing ... the court concludes that the spillage occurred after the FBI crime laboratory received and tested the evidence." Id., at 348 (emphasis added).


[144] Normally, an appellate court reviews a district court's factual findings only for clear error. See Fed. Rule Civ. Proc. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses"); Bessemer City, supra, at 574 (clearly erroneous standard applies "even when the district court's findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts"). The Sixth Circuit deferred to the District Court's factual findings, 386 F. 3d 668, 684 (2004), and Schlup did not purport to alter --but instead reaffirmed and highlighted -- the district court's critical role as factfinder. Yet the majority asserts that the clear error standard "overstates the effect of the District Court's ruling," and then dismisses the District Court's reliability findings because it is "uncertain about" them, while stopping short of identifying clear error. Ante, at 20. This is a sharp departure from the guidance in Schlup.


[145] In Schlup, we contrasted a district court's role in assessing the reliability of new evidence of innocence with a district court's role in deciding a summary judgment motion. 513 U. S., at 332. We explained that, in the latter situation, the district court does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial. Ibid. Assessing the reliability of new evidence, on the other hand, is a typical factfinding role, requiring credibility determinations and a weighing of the "probative force" of the new evidence in light of "the evidence of guilt adduced at trial." Ibid. We found it "obviou[s]" that a habeas court conducting an actual innocence inquiry must do more than simply check whether there are genuine factual issues for trial. Ibid. The point of the actual innocence inquiry is for the federal habeas court to satisfy itself that it should suspend the normal procedural default rule, disregard the important judicial interests of finality and comity, and allow a state prisoner to present his defaulted constitutional claims to a federal court. See McCleskey v. Zant, 499 U. S. 467, 490-491 (1991).


[146] The majority surprisingly states that this guidance is inapplicable here because this case involves a "fully developed record," while the district court in Schlup had declined to conduct an evidentiary hearing. Ante, at 17-18. But the guidance is clearly applicable: The point in Schlup was not simply that a hearing was required, but why -- because the district court had to assess the probative force of the petitioner's newly presented evidence, by engaging in factfinding rather than performing a summary judgment-type inquiry. 513 U. S., at 331-332. That is precisely what the District Court did here. In addition to a "fully developed record," we have the District Court's factual findings about the reliability of the new evidence in that record, factual findings which the majority disregards without finding clear error.


[147] The majority essentially disregards the District Court's role in assessing the reliability of House's new evidence. With regard to the sisters' testimony, the majority casts aside the District Court's determination that their statements came too late and were too inconsistent with credible record evidence to be reliable, instead observing that the women had no obvious reason to lie, that a few aspects of their testimony have record support, and that they recounted an uncoerced confession. Ante, at 32-33. As for the District Court's express finding that the autopsy blood spilled after the FBI tested House's jeans, the majority points to Dr. Blake's testimony that blood enzymes "are generally better preserved on cloth," and even conjures up its own theory in an attempt to refute Ms. Sutton's expert testimony that the pattern of some bloodstains was consistent with blood being transferred while the pants were being worn. Ante, at 27 ("This should be a matter for the trier of fact to consider in the first instance, but we can note a line of argument that could refute the State's position ... [Ms. Sutton's] testimony ... does not refute the hypothesis that the packaging of the pants for transport was what caused them to be folded or creased"); see App. 296.


[148] The majority's assessment of House's new evidence is precisely the summary judgment-type inquiry Schlup said was inappropriate. 513 U. S., at 332. By casting aside the District Court's factual determinations made after a comprehensive evidentiary hearing, the majority has done little more than reiterate the factual disputes presented below. Witnesses do not testify in our courtroom, and it is not our role to make credibility findings and construct theories of the possible ways in which Mrs. Muncey's blood could have been spattered and wiped on House's jeans. The District Court did not painstakingly conduct an evidentiary hearing to compile a record for us to sort through transcript by transcript and photograph by photograph, assessing for ourselves the reliability of what we see. Schlup made abundantly clear that reliability determinations were essential, but were for the district court to make. 513 U. S., at 331-332. We are to defer to the better situated District Court on reliability, unless we determine that its findings are clearly erroneous. We are not concerned with "the district court's independent judgment as to whether reasonable doubt exists," id., at 329, but the District Court here made basic factual findings about the reliability of House's new evidence; it did not offer its personal opinion about whether it doubted House's guilt. Schlup makes clear that those findings are controlling unless clearly erroneous.


[149] I have found no clear error in the District Court's reliability findings. Not having observed Ms. Parker and Ms. Letner testify, I would defer to the District Court's determination that they are not credible, and the evidence in the record undermining the tale of an accidental killing during a fight in the Muncey home convinces me that this credibility finding is not clearly erroneous. Dr. Alex Carabia, who performed the autopsy, testified to injuries far more severe than a bump on the head: Mrs. Muncey had bruises on the front and back of her neck, on both thighs, on her lower right leg and left knee, and her hands were bloodstained up to the wrists; her injuries were consistent with a struggle and traumatic strangulation. Record, Addendum 4, 7 Tr. of Evidence in No. 378 (Crim. Ct. Union County, Tenn.) 984-987 (hereinafter Tr.) And, of course, Lora Tharp has consistently recalled a deep-voiced visitor arriving late at night to tell Mrs. Muncey that her husband was in a wreck near the creek. App. 19, 270.


[150] I also find abundant evidence in the record to support the District Court's finding that blood spilled within the evidence container after the FBI received and tested House's jeans. Agent Bigbee testified that there was no leakage in the items submitted to him for testing. Id., at 277. The majority's entire analysis on this point assumes the agent flatly lied, though there was no attack on his credibility below. Moreover, Ms. Sutton determined, in her expert opinion, that the wide distribution of stains "front and back, top to bottom," the fact that some bloodstains were mixed with mud, and the presence of bloodstains inside the pocket and inside the fly, showed that the blood was spattered and wiped -- not spilled -- on House's jeans. Id., at 291-293, 295; id., at 293 ("[I]f a tube of blood had spilled on these pants, the stain should have been in a localized area"); id., at 294 ("The stains also ... either originate on the inside and don't soak out or on the outside and are not soaking to the inside. That, of course, would be what you would see with a spill").


[151] It is also worth noting that the blood evidently spilled inside the evidence container when the jeans were protected inside a plastic zip lock bag, as shown by the presence of a bloodstain on the outside of that bag. See Record, Plt. Exh. 10-6. House's expert tested the exterior and interior of that plastic bag for bloodstains using an "extremely sensitive" test, and only the exterior of the bag tested positive for blood. Id., Doc. 274, at 95-96. The evidence in the record indicates that the jeans were placed in the plastic bag after they arrived at the FBI: FBI records show that the jeans arrived there in a paper bag, and the plastic bag has FBI markings on it. Id., Addendum 2, Trial Exh. 31, p. 36; id., Plt. Exh. 10-6. The bloodstain on the outside of the plastic bag therefore further supports the District Court's conclusion that the blood spilled after the evidence was received and tested by the FBI, and not en route when the jeans were in a paper bag. I suppose it is theoretically possible that the jeans were contaminated by spillage before arriving at the FBI, that Agent Bigbee either failed to note or lied about such spillage, and that the FBI then transferred the jeans into a plastic bag and put them back inside the evidence container with the spilled blood still sloshing around sufficiently to contaminate the outside of the plastic bag as extensively as it did. This sort of unbridled speculation can theoretically defeat any inconvenient fact, but does not suffice to convince me that the District Court's factual finding -- that the blood spilled after FBI testing -- was clearly erroneous.


[152] Moreover, the yellow "Tennessee Crime Lab" tape placed around the container on all four sides does not line up when the bloodstained corners of the container and its lid are aligned, showing that the blood did not spill until sometime after the container was received and opened at its first destination -- the FBI. See id., Respondent's Exh. 24; id., Doc. 276, pp. 190-191 (testimony of Paulette Sutton). The majority points out that on one side of the container, the first of two layers of tape appears to begin cleanly at the lid's edge, and from this concludes that the container must have been cut open and resealed by Tennessee authorities en route to the FBI. Ante, at 25; see Record, Respondent's Exh. 23d. Even if the majority's deduction from a photograph of the container were true, it would show only that Tennessee authorities had reason to open the container once it was sealed to take something out or put something in, perhaps back at the crime lab in Union County. But even if the container had been opened before its arrival at the FBI, the majority recognizes that it was resealed with "Tennessee Crime Lab" tape, and the second layer of tape aligns only when the bloodstains on the container and its lid do not. Ante, at 24-25. Of course, the District Court -- which concluded that the blood was spilled after testing at the FBI laboratory -- had before it the box itself with the tape as the witnesses testified on the point, and not -- like this Court -- simply a photograph. See Bessemer City, 470 U. S., at 574 (district court's findings about physical evidence are reviewed for clear error).


[153] House's theory that the blood on his jeans was transferred there from the autopsy samples is based on Dr. Blake's reading of Agent Bigbee's enzyme marker analysis summary. After reading the summary, Dr. Blake concluded that the enzymes in the bloodstains on House's jeans and the enzymes in the autopsy samples had deteriorated to the same extent. Record, Doc. 275, p. 110. In particular, he noted that the GLO1 enzyme showed "incomplete penetration" on both the autopsy blood and the jeans, and because enzymes are better preserved on cloth, the enzyme should have been present on the jeans. Id., at 116. But Agent Bigbee disputed Dr. Blake's reading of what was, after all, Agent Bigbee's own study. He testified that " `inc' " on his chart meant "inconclusive," not "incomplete penetration," and that the term "inconclusive" meant that the enzyme was present, but could not be grouped into an ABO bloodtype. Id., Doc. 276, at 140. While pointing out that his summary showed different levels of enzymes in the two samples, Agent Bigbee also noted that many different factors -- such as heat, dirt, or bacteria in a clothes hamper -- could cause enzymes to degrade on cloth. Id., at 139, 167-170. Considering how House's new blood spillage evidence fits within the record as a whole, I can see no clear error in the District Court's express finding that the blood spilled in the evidence container after the FBI found Mrs. Muncey's blood on House's jeans.


[154] The District Court attentively presided over a complex evidentiary hearing, often questioning witnesses extensively during the presentation of critical evidence. See, e.g., id., Doc. 275, at 110-115. The court concisely summarized the evidence presented, then dutifully made findings about the reliability of the testimony it heard and the evidence it observed. We are poorly equipped to second-guess the District Court's reliability findings and should defer to them, consistent with the guidance we provided in Schlup.


[155] II.


[156] With due regard to the District Court's reliability findings, this case invites a straightforward application of the legal standard adopted in Schlup. A petitioner does not pass through the Schlup gateway if it is "more likely than not that there is any juror who, acting reasonably, would have found the petitioner guilty beyond a reasonable doubt." 513 U. S., at 333 (O'Connor, J., concurring) (emphasis added).


[157] The majority states that if House had presented just one of his three key pieces of evidence -- or even two of the three -- he would not pass through the Schlup gateway. See ante, at 28 ("Were House's challenge to the State's case limited to the questions he has raised about the blood and semen, the other evidence favoring the prosecution might well suffice to bar relief"); ante, at 33 ("If considered in isolation, a reasonable jury might well disregard [the evidence pointing to Mr. Muncey]. In combination, however, with the challenges to the blood evidence and the lack of motive with respect to House, the evidence pointing to Mr. Muncey likely would reinforce other doubts as to House's guilt"). According to the majority, House has picked the trifecta of evidence that places conviction outside the realm of choices any juror, acting reasonably, would make. Because the case against House remains substantially unaltered from the case presented to the jury, I disagree.


[158] At trial, the State presented its story about what happened on the night of Mrs. Muncey's murder. The Munceys' daughter heard a deep-voiced perpetrator arrive at the Muncey home late at night and tell Mrs. Muncey that her husband had been in a wreck near the creek. App. 19. Ms. Tharp relayed her testimony again at the evidentiary hearing, and the District Court determined that she was a "very credible witness." Id., at 270, 323.


[159] When police questioned House after witnesses reported seeing him emerge from the embankment near Mrs. Muncey's body shortly before it was discovered, he told two different officers that he never left Donna Turner's trailer the previous evening, even recounting the series of television programs he watched before going to bed. 7 Tr. 963-965, 1031-1032. He had worked to concoct an alibi we now know was a lie. On the day Mrs. Muncey's body was found, Bill Breeding, a criminal investigator at the Union County Sheriff's Office, observed House at the local jail and noticed that he had abrasions "across his knuckles and about his hands," two or three bruises on his right arm, scratches on his chest, and his right ring finger was red and swollen. 6 id., at 801-802. The interviewing officers noticed similar injuries. App. 78-80; 7 Tr. 974-975. House told them that his finger was swollen because he fell off a porch, and the scratches and bruises were from tearing down a building, and from a cat. Ibid. Ms. Turner initially confirmed House's alibi, but she changed her story when police warned her that covering up a homicide was a serious offense. Id., at 1063. Ms. Turner then told police that House had in fact left her house that night between 10:30 and 10:45 p.m. Id., at 1062-1063. He came back some time later panting and sweating, shirtless and shoeless, and with various injuries. App. 88-91; 8 Tr. 1154-1155.


[160] Also on the day the body was found, Sheriff Earl Loy asked House if he was wearing the same clothes he wore the night before. 6 id., at 845. House "hesitated," then stated that he had changed his shirt, but not his jeans. Ibid. In other words, he specifically tried to conceal from the police that he had worn other jeans the night before, for reasons that were to become clear. Ms. Turner revealed that House's statement that he had not changed his jeans was a lie, and police retrieved House's dirty jeans from Ms. Turner's hamper. Ibid. Of course, FBI testing revealed that House's jeans were stained with Mrs. Muncey's blood, and the District Court determined that House's new evidence of blood spillage did not undermine those test results. App. 348. If in fact Mrs. Muncey's blood only got on House's jeans from later evidentiary spillage, House would have had no reason to lie to try to keep the existence of the concealed jeans from the police.


[161] Through Ms. Turner's testimony at trial, the jury also heard House's story about what happened that night. He left Ms. Turner's trailer late at night to go for a walk. Id., at 86. When he returned some time later -- panting, sweating, and missing his shirt and shoes -- he told her that some men in a truck tried to kill him. Id., at 88-91. When Ms. Turner asked House about his injuries, he attributed them to fighting with his assailants. Id., at 90; 8 Tr. 1154-1155. House retold this story to the District Court, saying that he initially lied to police because he was on parole and did not want to draw attention to himself. Record, Doc. 276, at 99, 108-109. In other words, having nothing to hide and facing a murder charge, House lied -- and when he was caught in the lie, he said he lied not to escape the murder charge, but solely to avoid unexplained difficulties with his parole officer. The jury rejected House's story about the night's events, and the District Court "considered Mr. House's demeanor and found that he was not a credible witness." App. 329.


[162] The jury also heard House's attempt to implicate Mr. Muncey in his wife's murder by calling Mrs. Muncey's brother, Ricky Green, as a witness. Mr. Green testified that two weeks before the murder, his sister called him to say that she and Mr. Muncey had been fighting, that she wanted to leave him, and that she was scared. 7 Tr. 1088. Mr. Green also testified that the Munceys had marital problems, and that he had previously seen Mr. Muncey hit his wife. Id., at 1087. The jury rejected House's attempt to implicate Mr. Muncey, and the District Court was not persuaded by House's attempt to supplement this evidence at the evidentiary hearing, finding that his new witnesses were not credible. App. 348.


[163] Noticeably absent from the State's story about what happened to Mrs. Muncey on the night of her death was much mention of the semen found on Mrs. Muncey's clothing. House's single victory at the evidentiary hearing was new DNA evidence proving that the semen was deposited by Mr. Muncey. The majority identifies the semen evidence as "[c]entral to the State's case" against House, ante, at 8, but House's jury would probably be quite surprised by this characterization. At trial, Agent Bigbee testified that from the semen stains on Mrs. Muncey's clothing, he could determine that the man who deposited the semen had type A blood, and was a secretor. App. 54-56. Agent Bigbee also testified that House and Mr. Muncey both have type A blood, that House is a secretor, and that "[t]here is an eighty (80%) percent chance that [Mr. Muncey] is a secretor." Id., at 55-56; 6 Tr. 952 (emphasis added). Moreover, Agent Bigbee informed the jury that because 40 percent of people have type A blood, and 80 percent of those people are secretors, the semen on Mrs. Muncey's clothing could have been deposited by roughly one out of every three males. Id., at 957. The jury was also informed several times by the defense that Mrs. Muncey's body was found fully clothed. See, e.g., 4 id., at 628; 9 id., at 1274.


[164] The majority describes House's sexual motive as "a central theme in the State's narrative linking House to the crime," and states that without the semen evidence, "a jury ... would have found it necessary to establish some different motive, or, if the same motive, an intent far more speculative." Ante, at 21. The State, however, consistently directed the jury's attention away from motive, and sexual motive was far from a "central theme" of the State's case -- presumably because of the highly ambiguous nature of the semen evidence recounted above. The Tennessee Supreme Court did not mention that evidence in cataloging the "[p]articularly incriminating" or "[d]amaging" evidence against House. App. 135. The State did not mention the semen evidence in its opening statement to the jury, instead focusing on premeditation. 4 Tr. 613-615. The defense used its opening statement to expose lack of motive as a weakness in the State's case. Id., at 628. After the State's equivocal presentation of the semen evidence through Agent Bigbee's testimony at trial, the State again made no reference to the semen evidence or to a motive in its closing argument, prompting the defense to again highlight this omission. 9 id., at 1274 ("[W]hy was Carolyn Muncey killed? We don't know. Is it important to have some motive? In your minds? What motive did Paul Gregory House have to go over and kill a woman that he barely knew? Who was still dressed, still clad in her clothes").


[165] In rebuttal, the State disclaimed any responsibility to prove motive, again shifting the jury's focus to premeditation:


[166] "The law says that if you take another person's life, you beat them, you strangle them, and then you don't succeed, and then you kill them by giving them multiple blows to the head, and one massive blow to the head, and that that causes their brains to crash against the other side of their skull, and caused such severe bleeding inside the skull itself, that you die --that it does not make any difference under God's heaven, what the motive was. That is what the law is. The law is that if motive is shown, it can be considered by the jury as evidence of guilt. But the law is that if you prove that a killing was done, beyond a reasonable doubt, by a person, and that he premeditated it, he planned it, it is not necessary for the jury to conclude why he did it." App. 106.


[167] As a follow-up to this explanation, when the trial was almost over and only in response to the defense's consistent prodding, the State made its first and only reference to a possible motive, followed immediately by another disclaimer:


[168] "Now, you may have an idea why he did it. The evidence at the scene which seemed to suggest that he was subjecting this lady to some kind of indignity, why would you get a lady out of her house, late at night, in her night clothes, under the trick that her husband has had a wreck down by the creek? ... Why is it that you choke her? Why is it that you repeatedly beat her? Why is it that she has scrapes all over her body? Well, it is because either you don't want her to tell what indignities you have subjected her to, or she is unwilling and fights against you, against being subjected to those indignities... . That is what the evidence at the scene suggests about motive. But motive is not an element of the crime. It is something that you can consider, or ignore. Whatever you prefer. The issue is not motive. The issue is premeditation." Id., at 106-107.


[169] It is on this "obliqu[e]" reference to the semen evidence during the State's closing argument that the majority bases its assertion that House's sexual motive was a "central theme in the State's narrative." Ante, at 11, 21. Although it is possible that one or even some jurors might have entertained doubt about House's guilt absent the clearest evidence of motive, I do not find it more likely than not that every juror would have done so, and that is the legal standard under Schlup. The majority aphoristically states that "[w]hen identity is in question, motive is key." Ante, at 21. Not at all. Sometimes, when identity is in question, alibi is key. Here, House came up with one -- and it fell apart, later admitted to be fabricated when his girlfriend would not lie to protect him. Scratches from a cat, indeed. Surely a reasonable juror would give the fact that an alibi had been made up and discredited significant weight. People facing a murder charge, who are innocent, do not make up a story out of concern that the truth might somehow disturb their parole officer. And people do not lie to the police about which jeans they were wearing the night of a murder, if they have no reason to believe the jeans would be stained with the blood shed by the victim in her last desperate struggle to live.


[170] In Schlup, we made clear that the standard we adopted requires a "stronger showing than that needed to establish prejudice." 513 U. S., at 327. In other words, House must show more than just a "reasonable probability that ... the factfinder would have had a reasonable doubt respecting guilt." Strickland v. Washington, 466 U. S. 668, 695 (1984). House must present such compelling evidence of innocence that it becomes more likely than not that no single juror, acting reasonably, would vote to convict him. Schlup, supra, at 329. The majority's conclusion is that given the sisters' testimony (if believed), and Dr. Blake's rebutted testimony about how to interpret Agent Bigbee's enzyme marker analysis summary (if accepted), combined with the revelation that the semen on Mrs. Muncey's clothing was deposited by her husband (which the jurors knew was just as likely as the semen having been deposited by House), no reasonable juror would vote to convict House. Ante, at 34. Given the District Court's reliability findings about the first two pieces of evidence, the evidence before us now is not substantially different from that considered by House's jury. I therefore find it more likely than not that in light of this new evidence, at least one juror, acting reasonably, would vote to convict House. The evidence as a whole certainly does not establish that House is actually innocent of the crime of murdering Carolyn Muncey, and accordingly I dissent.

Davis v. Washington, 126 S.Ct. 2266 (U.S. 06/19/2006)

[1] SUPREME COURT OF THE UNITED STATES


[2] Nos. 05-5224 and 05-5705


[3] 126 S.Ct. 2266


[4] June 19, 2006 *fn1


[5] ADRIAN MARTELL DAVIS, PETITIONER, 05-5224
v.
WASHINGTON
HERSHEL HAMMON, PETITIONER, 05-5705
v.
INDIANA


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM 2005


[8] Argued March 20, 2006


[9] In No. 05-5224, a 911 operator ascertained from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis's trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording despite Davis's objection, which he based on the Sixth Amendment's Confrontation Clause. He was convicted. The Washington Court of Appeals affirmed, as did the State Supreme Court, which concluded that, inter alia, the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial.


[10] In No. 05-5705, when police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel's bench trial for, inter alia, domestic battery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel's objection that he had no opportunity to cross-examine her. Hershel was convicted, and the Indiana Court of Appeals affirmed in relevant part. The State Supreme Court also affirmed, concluding that, although Amy's affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt.


[11] Held:


[12] 1. The Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." Crawford v. Washington, 541 U. S. 36, 53-54. These cases require the Court to determine which police "interrogations" produce statements that fall within this prohibition. Without attempting to produce an exhaustive classification of all conceivable statements as either testimonial or non-testimonial, it suffices to decide the present cases to hold that statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Pp. 6-7.


[13] 2. McCottry's statements identifying Davis as her assailant were not testimonial. Pp. 8-14.


[14] (a) This case requires the Court to decide whether the Confrontation Clause applies only to testimonial hearsay, and, if so, whether the 911 recording qualifies. Crawford suggested the answer to the first question, noting that "the Confrontation Clause ... applies to `witnesses' against the accused --in other words, those who `bear testimony.' " Only "testimonial statements" cause a declarant to be a witness. The Court is unaware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not involve testimony as thus defined. Well into the 20th century, this Court's jurisprudence was carefully applied only in the testimonial context, and its later cases never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases involving testimonial hearsay. Pp. 8-11.


[15] (b) The question in Davis, therefore, is whether, objectively considered, the interrogation during the 911 call produced testimonial statements. In contrast to Crawford, where the interrogation took place at a police station and was directed solely at establishing a past crime, a 911 call is ordinarily designed primarily to describe current circumstances requiring police assistance. The difference is apparent here. McCottry was speaking of events as they were actually happening, while Crawford's interrogation took place hours after the events occurred. Moreover, McCottry was facing an ongoing emergency. Further, the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the difference in the level of formality is striking. Crawford calmly answered questions at a station house, with an officer-interrogator taping and taking notes, while McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even safe. Thus, the circumstances of her interrogation objectively indicate that its primary purpose was to enable police assistance to meet an ongoing emergency. She was not acting as a witness or testifying. Pp. 11-14.


[16] 3. Amy Hammon's statements were testimonial. They were not much different from those in Crawford. It is clear from the circumstances that Amy's interrogation was part of an investigation into possibly criminal past conduct. There was no emergency in progress, she told the police when they arrived that things were fine, and the officer questioning her was seeking to determine not what was happening but what had happened. Objectively viewed, the primary, if not sole, purpose of the investigation was to investigate a possible crime. While the formal features of Crawford's interrogation strengthened her statements' testimonial aspect, such features were not essential to the point. In both cases, the declarants were separated from the defendants, the statements recounted how potentially criminal past events began and progressed, and the interrogation took place some time after the events were over. For the same reasons the comparison to Crawford is compelling, the comparison to Davis is unpersuasive. The statements in Davis were taken when McCottry was alone, unprotected by police, and apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. Pp. 14-17.


[17] 4. The Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing -- under which one who obtains a witness's absence by wrongdoing forfeits the constitutional right to confrontation -- is properly raised in Hammon, and, if so, whether it is meritorious. Absent such a finding, the Sixth Amendment operates to exclude Amy Hammon's affidavit. Pp. 18-19.


[18] No. 05-5224, 154 Wash. 2d 291, 111 P. 3d 844, affirmed; No. 05-5705, 829 N. E. 2d 444, reversed and remanded.


[19] Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part.


[20] On Writ Of Certiorari To The Supreme Court Of Washington Court Below: 111 P. 3d 844 On Writ of Certiorari to the Supreme Court of Indiana Court Below: 829 N.E. 2d 444


[21] Jeffrey L. Fisher, by appointment of the Court, 546 U. S. _____, argued the cause for petitioner in No. 05-5224. With him on the briefs was Nancy Collins. Richard D. Friedman, by appointment of the Court, 546 U. S. _____, argued the cause for petitioner in No. 05-5705. With him on the briefs was Kimberly A. Jackson.


[22] James M. Whisman argued the cause for respondent in No. 05-5224. With him on the brief were Norm Maleng, Deborah A. Dwyer, and Lee D. Yates. Thomas M. Fisher, Solicitor General of Indiana, argued the cause for respondent in No. 05-5705. With him on the brief were Steve Carter, Attorney General, and Nicole M. Schuster and Julie A. Hoffman, Deputy Attorneys General.


[23] Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance in No. 05-5224. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Irving L. Gornstein, and Joel M. Gershowitz.


[24] Mr. Gornstein argued the cause for the United States as amicus curiae urging affirmance in No. 05-5705. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, and Deputy Solicitor General Dreeben.


[25] Briefs of amici curiae urging reversal in both cases were filed for the American Civil Liberties Union et al. by Jordan Gross, Steven R. Shapiro, Lenora Lapidus, Ken Falk, and Aaron Caplan; and for the National Association of Criminal Defense Lawyers et al. by Timothy P. O'Toole, Catharine F. Easterly, Andrea Roth, Corinne Beckwith, Pamela Harris, and Sheryl McCloud.


[26] Briefs of amici curiae urging affirmance in both cases were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Michael Scodro, Deputy Solicitor General, and Linda D. Woloshin and Anderson M. Gansner, Assistant Attorneys General, by Christopher L. Morano, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, John W. Suthers of Colorado, Carl C. Danberg of Delaware, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, George J. Chanos of Nevada, Patricia A. Madrid of New Mexico, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming; for Cook County, Illinois, by Richard A. Devine and Veronica Calderon Malavia; for the National Association of Counsel for Children by Anthony J. Franze; for the National District Attorneys Association by Mark Ryan Dwyer, David M. Cohn, Susan Axelrod, and Joshua A. Engel; and for the National Network to End Domestic Violence et al. by Antonia B. Ianniello, Michael D. Rips, Jennifer K. Brown, Lynn Hecht Schafran, Joan S. Meier, and Fernando R. Laguarda.


[27] Kym L. Worthy and Timothy A. Baughman filed a brief for Wayne County, Michigan, as amicus curiae urging affirmance in No. 05-5705.


[28] The opinion of the court was delivered by: Justice Scalia


[29] 547 U. S. ____ (2006_)


[30] These cases require us to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are "testimonial" and thus subject to the requirements of the Sixth Amendment's Confrontation Clause.


[31] I.


[32] A.


[33] The relevant statements in Davis v. Washington, No. 05-5224, were made to a 911 emergency operator on February 1, 2001. When the operator answered the initial call, the connection terminated before anyone spoke. She reversed the call, and Michelle McCottry answered. In the ensuing conversation, the operator ascertained that McCottry was involved in a domestic disturbance with her former boyfriend Adrian Davis, the petitioner in this case:


[34] "911 Operator:Hello.


[35] "Complainant:Hello.


[36] "911 Operator:What's going on?


[37] "Complainant:He's here jumpin' on me again.


[38] "911 Operator:Okay. Listen to me carefully. Are you in a house or an apartment?


[39] "Complainant:I'm in a house.


[40] "911 Operator:Are there any weapons?


[41] "Complainant:No. He's usin' his fists.


[42] "911 Operator:Okay. Has he been drinking?


[43] "Complainant: No.


[44] "911 Operator:Okay, sweetie. I've got help started. Stay on the line with me, okay?


[45] "Complainant:I'm on the line.


[46] "911 Operator:Listen to me carefully. Do you know his last name?


[47] "Complainant:It's Davis.


[48] "911 Operator:Davis? Okay, what's his first name?


[49] "Complainant:Adran


[50] "911 Operator:What is it?


[51] "Complainant:Adrian.


[52] "911 Operator:Adrian?


[53] "Complainant:Yeah.


[54] "911 Operator:Okay. What's his middle initial?


[55] "Complainant:Martell. He's runnin' now." App. in No. 05-5224, pp. 8-9.


[56] As the conversation continued, the operator learned that Davis had "just r[un] out the door" after hitting McCottry, and that he was leaving in a car with someone else. Id., at 9-10. McCottry started talking, but the operator cut her off, saying, "Stop talking and answer my questions." Id., at 10. She then gathered more information about Davis (including his birthday), and learned that Davis had told McCottry that his purpose in coming to the house was "to get his stuff," since McCottry was moving. Id., at 11-12. McCottry described the context of the assault, id., at 12, after which the operator told her that the police were on their way. "They're gonna check the area for him first," the operator said, "and then they're gonna come talk to you." Id., at 12-13.


[57] The police arrived within four minutes of the 911 call and observed McCottry's shaken state, the "fresh injuries on her forearm and her face," and her "frantic efforts to gather her belongings and her children so that they could leave the residence." 154 Wash. 2d 291, 296, 111 P. 3d 844, 847 (2005) (en banc).


[58] The State charged Davis with felony violation of a domestic no-contact order. "The State's only witnesses were the two police officers who responded to the 911 call. Both officers testified that McCottry exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries." Ibid. McCottry presumably could have testified as to whether Davis was her assailant, but she did not appear. Over Davis's objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him. The Washington Court of Appeals affirmed, 116 Wash. App. 81, 64 P. 3d 661 (2003). The Supreme Court of Washington, with one dissenting justice, also affirmed, concluding that the portion of the 911 conversation in which McCottry identified Davis was not testimonial, and that if other portions of the conversation were testimonial, admitting them was harmless beyond a reasonable doubt. 154 Wash. 2d, at 305, 111 P. 3d, at 851. We granted certiorari. 546 U. S. ___ (2005).


[59] B.


[60] In Hammon v. Indiana, No. 05-5705, police responded late on the night of February 26, 2003, to a "reported domestic disturbance" at the home of Hershel and Amy Hammon. 829 N. E. 2d 444, 446 (Ind. 2005). They found Amy alone on the front porch, appearing " `somewhat frightened,' " but she told them that " `nothing was the matter,' " id., at 446, 447. She gave them permission to enter the house, where an officer saw "a gas heating unit in the corner of the living room" that had "flames coming out of the ... partial glass front. There were pieces of glass on the ground in front of it and there was flame emitting from the front of the heating unit." App. in No. 05-5705, p. 16.


[61] Hershel, meanwhile, was in the kitchen. He told the police "that he and his wife had `been in an argument' but `everything was fine now' and the argument `never became physical.' " 829 N. E. 2d, at 447. By this point Amy had come back inside. One of the officers remained with Hershel; the other went to the living room to talk with Amy, and "again asked [her] what had occurred." Ibid.; App. in No. 05-5705, at 17, 32. Hershel made several attempts to participate in Amy's conversation with the police, see id., at 32, but was rebuffed. The officer later testified that Hershel "became angry when I insisted that [he] stay separated from Mrs. Hammon so that we can investigate what had happened." Id., at 34. After hearing Amy's account, the officer "had her fill out and sign a battery affidavit." Id., at 18. Amy handwrote the following: "Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn't leave the house. Attacked my daughter." Id., at 2.


[62] The State charged Hershel with domestic battery and with violating his probation. Amy was subpoenaed, but she did not appear at his subsequent bench trial. The State called the officer who had questioned Amy, and asked him to recount what Amy told him and to authenticate the affidavit. Hershel's counsel repeatedly objected to the admission of this evidence. See id., at 11, 12, 13, 17, 19, 20, 21. At one point, after hearing the prosecutor defend the affidavit because it was made "under oath," defense counsel said, "That doesn't give us the opportunity to cross examine [the] person who allegedly drafted it. Makes me mad." Id., at 19. Nonetheless, the trial court admitted the affidavit as a "present sense impression," id., at 20, and Amy's statements as "excited utterances" that "are expressly permitted in these kinds of cases even if the declarant is not available to testify." Id., at 40. The officer thus testified that Amy


[63] "informed me that she and Hershel had been in an argument. That he became irrate [sic] over the fact of their daughter going to a boyfriend's house. The argument became ... physical after being verbal and she informed me that Mr. Hammon, during the verbal part of the argument was breaking things in the living room and I believe she stated he broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater.


[64] ... ..


[65] "She informed me Mr. Hammon had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe." Id., at 17-18.


[66] The trial judge found Hershel guilty on both charges, id., at 40, and the Indiana Court of Appeals affirmed in relevant part, 809 N. E. 2d 945 (2004). The Indiana Supreme Court also affirmed, concluding that Amy's statement was admissible for state-law purposes as an excited utterance, 829 N. E. 2d, at 449; that "a `testimonial' statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings," where "the motivations of the questioner and declarant are the central concerns," id., at 456, 457; and that Amy's oral statement was not "testimonial" under these standards, id., at 458. It also concluded that, although the affidavit was testimonial and thus wrongly admitted, it was harmless beyond a reasonable doubt, largely because the trial was to the bench. Id., at 458-459. We granted certiorari. 546 U. S. ___ (2005).


[67] II.


[68] The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford v. Washington, 541 U. S. 36, 53-54 (2004), we held that this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase "testimonial statements." Only statements of this sort cause the declarant to be a "witness" within the meaning of the Confrontation Clause. See id., at 51. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.


[69] Our opinion in Crawford set forth "[v]arious formulations" of the core class of " `testimonial' " statements, ibid., but found it unnecessary to endorse any of them, because "some statements qualify under any definition," id., at 52. Among those, we said, were "[s]tatements taken by police officers in the course of interrogations," ibid.; see also id., at 53. The questioning that generated the deponent's statement in Crawford --which was made and recorded while she was in police custody, after having been given Miranda warnings as a possible suspect herself -- "qualifies under any conceivable definition" of an " `interrogation,' " 541 U. S., at 53, n. 4. We therefore did not define that term, except to say that "[w]e use [it] . . . in its colloquial, rather than any technical legal, sense," and that "one can imagine various definitions . . . , and we need not select among them in this case." Ibid. The character of the statements in the present cases is not as clear, and these cases require us to determine more precisely which police interrogations produce testimony.


[70] Without attempting to produce an exhaustive classification of all conceivable statements -- or even all conceivable statements in response to police interrogation -- as either testimonial or non-testimonial, it suffices to decide the present cases to hold as follows: Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.*fn2


[71] III.


[72] A.


[73] In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id., at 53. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call*fn3 are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition." We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.


[74] The answer to the first question was suggested in Crawford, even if not explicitly held:


[75] "The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accused -- in other words, those who `bear testimony.' 1 N. Webster, An American Dictionary of the English Language (1828). `Testimony,' in turn, is typically `a solemn declaration or affirmation made for the purpose of establishing or proving some fact.' Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." 541 U. S., at 51.


[76] A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter.


[77] We are not aware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not clearly involve testimony as thus defined.*fn4 Well into the 20th century, our own Confrontation Clause jurisprudence was carefully applied only in the testimonial context. See, e.g., Reynolds v. United States, 98 U. S. 145, 158 (1879) (testimony at prior trial was subject to the Confrontation Clause, but petitioner had forfeited that right by procuring witness's absence); Mattox v. United States, 156 U. S. 237, 240-244 (1895) (prior trial testimony of deceased witnesses admitted because subject to cross-examination); Kirby v. United States, 174 U. S. 47, 55-56 (1899) (guilty pleas and jury conviction of others could not be admitted to show that property defendant received from them was stolen); Motes v. United States, 178 U. S. 458, 467, 470-471 (1900) (written deposition subject to cross-examination was not admissible because witness was available); Dowdell v. United States, 221 U. S. 325, 330-331 (1911) (facts regarding conduct of prior trial certified to by the judge, the clerk of court, and the official reporter did not relate to defendants' guilt or innocence and hence were not statements of "witnesses" under the Confrontation Clause).


[78] Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U. S. 56 (1980),*fn5 never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford, 541 U. S., at 57-59 (citing cases), with one arguable exception, see id., at 58, n. 8 (discussing White v. Illinois, 502 U. S. 346 (1992)). Where our cases did dispense with those requirements -- even under the Roberts approach -- the statements at issue were clearly non-testimonial. See, e.g., Bourjaily v. United States, 483 U. S. 171, 181-184 (1987) (statements made unwittingly to a Government informant); Dutton v. Evans, 400 U. S. 74, 87-89 (1970) (plurality opinion) (statements from one prisoner to another).


[79] Most of the American cases applying the Confrontation Clause or its state constitutional or common-law counterparts involved testimonial statements of the most formal sort -- sworn testimony in prior judicial proceedings or formal depositions under oath -- which invites the argument that the scope of the Clause is limited to that very formal category. But the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions, see Crawford, supra, at 52, and n. 3. In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no case -- English or early American, state or federal -- can be cited, that is it.


[80] The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. When we said in Crawford, supra, at 53, that "interrogations by law enforcement officers fall squarely within [the] class" of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, " `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " 541 U. S., at 51. (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e.g., United States v. Stewart, 433 F. 3d 273, 288 (CA2 2006) (false statements made to federal investigators violate 18 U. S. C. §1001); State v. Reed, 2005 WI 53, ¶30, 695 N. W. 2d 315, 323 (state criminal offense to "knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty").) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to "establis[h] or prov[e]" some past fact, but to describe current circumstances requiring police assistance.


[81] The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than "describ[ing] past events," Lilly v. Virginia, 527 U. S. 116, 137 (1999) (plurality opinion). Sylvia Crawford's interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry's call was plainly a call for help against bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator's effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 186 (2004). And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.


[82] We conclude from all this that the circumstances of McCottry's interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not "a weaker substitute for live testimony" at trial, United States v. Inadi, 475 U. S. 387, 394 (1986), like Lord Cobham's statements in Raleigh's Case, 2 How. St. Tr. 1 (1603), or Jane Dingler's ex parte statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or Sylvia Crawford's statement in Crawford. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry's emergency statement does not. No "witness" goes into court to proclaim an emergency and seek help.


[83] Davis seeks to cast McCottry in the unlikely role of a witness by pointing to English cases. None of them involves statements made during an ongoing emergency. In King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), for example, a young rape victim, "immediately on her coming home, told all the circumstances of the injury" to her mother. Id., at 200, 168 Eng. Rep., at 202. The case would be helpful to Davis if the relevant statement had been the girl's screams for aid as she was being chased by her assailant. But by the time the victim got home, her story was an account of past events.


[84] This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, "evolve into testimonial statements," 829 N. E. 2d, at 457, once that purpose has been achieved. In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottry's statements were testimonial, not unlike the "structured police questioning" that occurred in Crawford, 541 U. S., at 53, n. 4. This presents no great problem. Just as, for Fifth Amendment purposes, "police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect," New York v. Quarles, 467 U. S. 649, 658-659 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence. Davis's jury did not hear the complete 911 call, although it may well have heard some testimonial portions. We were asked to classify only McCottry's early statements identifying Davis as her assailant, and we agree with the Washington Supreme Court that they were not testimonial. That court also concluded that, even if later parts of the call were testimonial, their admission was harmless beyond a reasonable doubt. Davis does not challenge that holding, and we therefore assume it to be correct.


[85] B.


[86] Determining the testimonial or non-testimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct -- as, indeed, the testifying officer expressly acknowledged, App. in No. 05-5705, at 25, 32, 34. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, id., at 25. When the officers first arrived, Amy told them that things were fine, id., at 14, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) "what is happening," but rather "what happened." Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime -- which is, of course, precisely what the officer should have done.


[87] It is true that the Crawford interrogation was more formal. It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U. S., at 53, n. 4. While these features certainly strengthened the statements' testimonial aspect -- made it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal events -- none was essential to the point. It was formal enough that Amy's interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his "investigat[ion]." App. in No. 05-5705, at 34. What we called the "striking resemblance" of the Crawford statement to civil-law ex parte examinations, 541 U. S., at 52, is shared by Amy's statement here. Both declarants were actively separated from the defendant -- officers forcibly prevented Hershel from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.*fn6


[88] Both Indiana and the United States as amicus curiae argue that this case should be resolved much like Davis. For the reasons we find the comparison to Crawford compelling, we find the comparison to Davis unpersuasive. The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry's present-tense statements showed immediacy; Amy's narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer's questions, he had her execute an affidavit, in order, he testified, "[t]o establish events that have occurred previously." App. in No. 05-5705, at 18.


[89] Although we necessarily reject the Indiana Supreme Court's implication that virtually any "initial inquiries" at the crime scene will not be testimonial, see 829 N. E. 2d, at 453, 457, we do not hold the opposite --that no questions at the scene will yield non-testimonial answers. We have already observed of domestic disputes that "[o]fficers called to investigate ... need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim." Hiibel, 542 U. S., at 186. Such exigencies may often mean that "initial inquiries" produce non-testimonial statements. But in cases like this one, where Amy's statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were "initial inquiries" is immaterial. Cf. Crawford, supra, at 52, n. 3.*fn7


[90] IV.


[91] Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two cases -- domestic violence -- requires greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free. Cf. Kyllo v. United States, 533 U. S. 27 (2001) (suppressing evidence from an illegal search). But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that "the rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds." 541 U. S., at 62 (citing Reynolds, 98 U. S., at 158-159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.


[92] We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e.g., United States v. Scott, 284 F. 3d 758, 762 (CA7 2002). State courts tend to follow the same practice, see, e.g., Commonwealth v. Edwards, 444 Mass. 526, 542, 830 N. E. 2d 158, 172 (2005). Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that "hearsay evidence, including the unavailable witness's out-of-court statements, may be considered." Id., at 545, 830 N. E. 2d, at 174. The Roberts approach to the Confrontation Clause undoubtedly made recourse to this doctrine less necessary, because prosecutors could show the "reliability" of ex parte statements more easily than they could show the defendant's procurement of the witness's absence. Crawford, in overruling Roberts, did not destroy the ability of courts to protect the integrity of their proceedings.


[93] We have determined that, absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Amy Hammon's affidavit. The Indiana courts may (if they are asked) determine on remand whether such a claim of forfeiture is properly raised and, if so, whether it is meritorious.


[94] We affirm the judgment of the Supreme Court of Washington in No. 05-5224. We reverse the judgment of the Supreme Court of Indiana in No. 05-5705, and remand the case to that Court for proceedings not inconsistent with this opinion.


[95] It is so ordered.


[96] Opinion of Thomas, J.


[97] Justice Thomas, concurring in the judgment in part and dissenting in part.


[98] In Crawford v. Washington, 541 U. S. 36 (2004), we abandoned the general reliability inquiry we had long employed to judge the admissibility of hearsay evidence under the Confrontation Clause, describing that inquiry as "inherently, and therefore permanently, unpredictable." Id., at 68, n. 10 (emphasis in original). Today, a mere two years after the Court decided Crawford, it adopts an equally unpredictable test, under which district courts are charged with divining the "primary purpose" of police interrogations. Ante, at 7. Besides being difficult for courts to apply, this test characterizes as "testimonial," and therefore inadmissible, evidence that bears little resemblance to what we have recognized as the evidence targeted by the Confrontation Clause. Because neither of the cases before the Court today would implicate the Confrontation Clause under an appropriately targeted standard, I concur only in the judgment in Davis v. Washington, No. 05-5224, and dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705.


[99] I.


[100] A.


[101] The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ... ." U. S. Const., Amdt. 6. We have recognized that the operative phrase in the Clause, "witnesses against him," could be interpreted narrowly, to reach only those witnesses who actually testify at trial, or more broadly, to reach many or all of those whose out-of-court statements are offered at trial. Crawford, supra, at 42-43; White v. Illinois, 502 U. S. 346, 359-363 (1992) (Thomas, J., concurring in part and concurring in judgment). Because the narrowest interpretation of the Clause would conflict with both the history giving rise to the adoption of the Clause and this Court's precedent, we have rejected such a reading. See Crawford, supra, at 50-51; White, supra, at 360 (opinion of Thomas, J.).


[102] Rejection of the narrowest view of the Clause does not, however, require the broadest application of the Clause to exclude otherwise admissible hearsay evidence. The history surrounding the right to confrontation supports the conclusion that it was developed to target particular practices that occurred under the English bail and committal statutes passed during the reign of Queen Mary, namely, the "civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford, supra, at 43, 50; White, supra, at 361-362 (opinion of Thomas, J.); Mattox v. United States, 156 U. S. 237, 242 (1895). "The predominant purpose of the [Marian committal] statute was to institute systematic questioning of the accused and the witnesses." J. Langbein, Prosecuting Crime in the Renaissance 23 (1974) (emphasis added). The statute required an oral examination of the suspect and the accusers, transcription within two days of the examinations, and physical transmission to the judges hearing the case. Id., at 10, 23. These examinations came to be used as evidence in some cases, in lieu of a personal appearance by the witness. Crawford, supra, at 43-44; 9 W. Holdsworth, A History of English Law 223-229 (1926). Many statements that would be inadmissible as a matter of hearsay law bear little resemblance to these evidentiary practices, which the Framers proposed the Confrontation Clause to prevent. See, e.g., Crawford, supra, at 51 (contrasting "[a]n off-hand, overheard remark" with the abuses targeted by the Confrontation Clause). Accordingly, it is unlikely that the Framers intended the word "witness" to be read so broadly as to include such statements. Cf. Dutton v. Evans, 400 U. S. 74, 94 (1970) (Harlan, J., concurring in result) (rejecting the "assumption that the core purpose of the Confrontation Clause of the Sixth Amendment is to prevent overly broad exceptions to the hearsay rule").


[103] In Crawford, we recognized that this history could be squared with the language of the Clause, giving rise to a workable, and more accurate, interpretation of the Clause. " `[W]itnesses,' " we said, are those who " `bear testimony.' " 541 U. S., at 51 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). And " `[t]estimony' " is " `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Ibid. (quoting Webster, supra). Admittedly, we did not set forth a detailed framework for addressing whether a statement is "testimonial" and thus subject to the Confrontation Clause. But the plain terms of the "testimony" definition we endorsed necessarily require some degree of solemnity before a statement can be deemed "testimonial."


[104] This requirement of solemnity supports my view that the statements regulated by the Confrontation Clause must include "extra-judicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." White, supra, at 365 (opinion of Thomas, J.). Affidavits, depositions, and prior testimony are, by their very nature, taken through a formalized process. Likewise, confessions, when extracted by police in a formal manner, carry sufficient indicia of solemnity to constitute formalized statements and, accordingly, bear a "striking resemblance," Crawford, supra, at 52, to the examinations of the accused and accusers under the Marian statutes.*fn8 See generally Langbein, supra, at 21-34.


[105] Although the Court concedes that the early American cases invoking the right to confrontation or the Confrontation Clause itself all "clearly involve[d] testimony" as defined in Crawford, ante, at 9, it fails to acknowledge that all of the cases it cites fall within the narrower category of formalized testimonial materials I have proposed. See ante, at 9, n. 3.*fn9 Interactions between the police and an accused (or witnesses) resemble Marian proceedings -- and these early cases -- only when the interactions are somehow rendered "formal." In Crawford, for example, the interrogation was custodial, taken after warnings given pursuant to Miranda v. Arizona, 384 U. S. 436 (1966). 541 U. S., at 38. Miranda warnings, by their terms, inform a prospective defendant that " `anything he says can be used against him in a court of law.' " Dickerson v. United States, 530 U. S. 428, 435 (2000) (quoting Miranda, supra, at 479). This imports a solemnity to the process that is not present in a mere conversation between a witness or suspect and a police officer.*fn10


[106] The Court all but concedes that no case can be cited for its conclusion that the Confrontation Clause also applies to informal police questioning under certain circumstances. Ante, at 9-11. Instead, the sole basis for the Court's conclusion is its apprehension that the Confrontation Clause will "readily be evaded" if it is only applicable to formalized testimonial materials. Ante, at 11. But the Court's proposed solution to the risk of evasion is needlessly overinclusive. Because the Confrontation Clause sought to regulate prosecutorial abuse occurring through use of ex parte statements as evidence against the accused, it also reaches the use of technically informal statements when used to evade the formalized process. Cf. ibid. That is, even if the interrogation itself is not formal, the production of evidence by the prosecution at trial would resemble the abuses targeted by the Confrontation Clause if the prosecution attempted to use out-of-court statements as a means of circumventing the literal right of confrontation, see Coy v. Iowa, 487 U. S. 1012 (1988). In such a case, the Confrontation Clause could fairly be applied to exclude the hearsay statements offered by the prosecution, preventing evasion without simultaneously excluding evidence offered by the prosecution in good faith.


[107] The Court's standard is not only disconnected from history and unnecessary to prevent abuse; it also yields no predictable results to police officers and prosecutors attempting to comply with the law. Cf. Crawford, supra, at 68, n. 10 (criticizing unpredictability of the pre-Crawford test); White, 502 U. S., at 364-365 (Thomas, J., concurring in part and concurring in judgment) (limiting the Confrontation Clause to the discrete category of materials historically abused would "greatly simplify" application of the Clause). In many, if not most, cases where police respond to a report of a crime, whether pursuant to a 911 call from the victim or otherwise, the purposes of an interrogation, viewed from the perspective of the police, are both to respond to the emergency situation and to gather evidence. See New York v. Quarles, 467 U. S. 649, 656 (1984) ("Undoubtedly most police officers [deciding whether to give Miranda warnings in a possible emergency situation] would act out of a host of different, instinctive, and largely unverifiable motives -- their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect"). Assigning one of these two "largely unverifiable motives," ibid., primacy requires constructing a hierarchy of purpose that will rarely be present --and is not reliably discernible. It will inevitably be, quite simply, an exercise in fiction.


[108] The Court's repeated invocation of the word "objectiv[e]" to describe its test, see ante, at 7, 11-13, 15, however, suggests that the Court may not mean to reference purpose at all, but instead to inquire into the function served by the interrogation. Certainly such a test would avoid the pitfalls that have led us repeatedly to reject tests dependent on the subjective intentions of police officers.*fn11 It would do so, however, at the cost of being even more disconnected from the prosecutorial abuses targeted by the Confrontation Clause. Additionally, it would shift the ability to control whether a violation occurred from the police and prosecutor to the judge, whose determination as to the "primary purpose" of a particular interrogation would be unpredictable and not necessarily tethered to the actual purpose for which the police performed the interrogation.


[109] B.


[110] Neither the 911 call at issue in Davis nor the police questioning at issue in Hammon is testimonial under the appropriate framework. Neither the call nor the questioning is itself a formalized dialogue.*fn12 Nor do any circumstances surrounding the taking of the statements render those statements sufficiently formal to resemble the Marian examinations; the statements were neither Mirandized nor custodial, nor accompanied by any similar indicia of formality. Finally, there is no suggestion that the prosecution attempted to offer the women's hearsay evidence at trial in order to evade confrontation. See 829 N. E. 2d 444, 447 (Ind. 2005) (prosecution subpoenaed Amy Hammon to testify, but she was not present); 154 Wash. 2d 291, 296, 111 P. 3d 844, 847 (2005) (en banc) (State was unable to locate Michelle McCottry at the time of trial). Accordingly, the statements at issue in both cases are non-testimonial and admissible under the Confrontation Clause.


[111] The Court's determination that the evidence against Hammon must be excluded extends the Confrontation Clause far beyond the abuses it was intended to prevent. When combined with the Court's holding that the evidence against Davis is perfectly admissible, however, the Court's Hammon holding also reveals the difficulty of applying the Court's requirement that courts investigate the "primary purpose[s]" of the investigation. The Court draws a line between the two cases based on its explanation that Hammon involves "no emergency in progress," but instead, mere questioning as "part of an investigation into possibly criminal past conduct," ante, at 14-15, and its explanation that Davis involves questioning for the "primary purpose" of "enabl[ing] police assistance to meet an ongoing emergency," ante, at 13. But the fact that the officer in Hammon was investigating Mr. Hammon's past conduct does not foreclose the possibility that the primary purpose of his inquiry was to assess whether Mr. Hammon constituted a continuing danger to his wife, requiring further police presence or action. It is hardly remarkable that Hammon did not act abusively towards his wife in the presence of the officers, ante, at 15, and his good judgment to refrain from criminal behavior in the presence of police sheds little, if any, light on whether his violence would have resumed had the police left without further questioning, transforming what the Court dismisses as "past conduct" back into an "ongoing emergency." Ante, at 13, 15.*fn13 Nor does the mere fact that McCottry needed emergency aid shed light on whether the "primary purpose" of gathering, for example, the name of her assailant was to protect the police, to protect the victim, or to gather information for prosecution. In both of the cases before the Court, like many similar cases, pronouncement of the "primary" motive behind the interrogation calls for nothing more than a guess by courts.


[112] II.


[113] Because the standard adopted by the Court today is neither workable nor a targeted attempt to reach the abuses forbidden by the Clause, I concur only in the judgment in Davis v. Washington, No. 05-5224, and respectfully dissent from the Court's resolution of Hammon v. Indiana, No. 05-5705.



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Opinion Footnotes

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[114] *fn1 Together with No. 05-5705, Hammon v. Indiana, on certiorari to the Supreme Court of Indiana.


[115] *fn2 Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations -- which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily non-testimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.


[116] *fn3 If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in Crawford v. Washington, 541 U. S. 36 (2004), therefore, our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are "testimonial."


[117] *fn4 See, e.g., State v. Webb, 2 N. C. 103, 103-104 (Super. L. & Eq. 1794) (per curiam) (excluding deposition taken in absence of the accused); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807) (per curiam) (excluding prior testimony of deceased witness); Johnston v. State, 10 Tenn. 58, 59 (Err. & App. 1821) (admitting written deposition of deceased deponent, because defendant had the opportunity to cross-examine); Finn v. Commonwealth, 26 Va. 701, 707-708 (1827) (excluding prior testimony of a witness still alive, though outside the jurisdiction); State v. Hill, 20 S. C. L. 607 (App. 1835) (excluding deposition of deceased victim taken in absence of the accused); Commonwealth v. Richards, 35 Mass. 434, 436-439 (1837) (excluding preliminary examination testimony of deceased witness because the witness's precise words were not available); Bostick v. State, 22 Tenn. 344 (1842) (admitting deposition of deceased where defendant declined opportunity to cross-examine); People v. Newman, 5 Hill 295 (N. Y. Sup. Ct. 1843) (per curiam) (excluding prior trial testimony of witness who was still alive); State v. Campbell, 30 S. C. L. 124, 125 (App. L. 1844) (excluding deposition taken in absence of the accused); State v. Valentine, 29 N. C. 225 (1847) (per curiam) (admitting preliminary examination testimony of decedent where defendant had opportunity to cross-examine); Kendrick v. State, 29 Tenn. 479, 491 (1850) (admitting testimony of deceased witness at defendant's prior trial); State v. Houser, 26 Mo. 431, 439-441 (1858) (excluding deposition of deponent who was still alive).


[118] *fn5 "Roberts condition[ed] the admissibility of all hearsay evidence on whether it falls under a `firmly rooted hearsay exception' or bears `particularized guarantees of trustworthiness.' " Crawford, 541 U. S., at 60 (quoting Roberts, 448 U. S., at 66). We overruled Roberts in Crawford by restoring the unavailability and cross-examination requirements.


[119] *fn6 The dissent criticizes our test for being "neither workable nor a targeted attempt to reach the abuses forbidden by the [Confrontation] Clause," post, at 9 (opinion of Thomas, J.). As to the former: We have acknowledged that our holding is not an "exhaustive classification of all conceivable statements -- or even all conceivable statements in response to police interrogation," supra, at 7, but rather a resolution of the cases before us and those like them. For those cases, the test is objective and quite "workable." The dissent, in attempting to formulate an exhaustive classification of its own, has not provided anything that deserves the description "workable" -- unless one thinks that the distinction between "formal" and "informal" statements, see post, at 4-5, qualifies. And the dissent even qualifies that vague distinction by acknowledging that the Confrontation Clause "also reaches the use of technically informal statements when used to evade the formalized process," post, at 5, and cautioning that the Clause would stop the State from "us[ing] out-of-court statements as a means of circumventing the literal right of confrontation," post, at 6. It is hard to see this as much more "predictable," ibid., than the rule we adopt for the narrow situations we address. (Indeed, under the dissent's approach it is eminently arguable that the dissent should agree, rather than disagree, with our disposition in Hammon v. Indiana, No. 05-5705.) As for the charge that our holding is not a "targeted attempt to reach the abuses forbidden by the [Confrontation] Clause," which the dissent describes as the depositions taken by Marian magistrates, characterized by a high degree of formality, see post, at 2-3: We do not dispute that formality is indeed essential to testimonial utterance. But we no longer have examining Marian magistrates; and we do have, as our 18th-century forebears did not, examining police officers, see L. Friedman, Crime and Punishment in American History 67-68 (1993) -- who perform investigative and testimonial functions once performed by examining Marian magistrates, see J. Langbein, The Origins of Adversary Criminal Trial 41 (2003). It imports sufficient formality, in our view, that lies to such officers are criminal offenses. Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction. Cf. Kyllo v. United States, 533 U. S. 27 (2001).


[120] *fn7 Police investigations themselves are, of course, in no way impugned by our characterization of their fruits as testimonial. Investigations of past crimes prevent future harms and lead to necessary arrests. While prosecutors may hope that inculpatory "non-testimonial" evidence is gathered, this is essentially beyond police control. Their saying that an emergency exists cannot make it be so. The Confrontation Clause in no way governs police conduct, because it is the trial use of, not the investigatory collection of, ex parte testimonial statements which offends that provision. But neither can police conduct govern the Confrontation Clause; testimonial statements are what they are.


[121] *fn8 Like the Court, I presume the acts of the 911 operator to be the acts of the police. Ante, at 8, n. 2. Accordingly, I refer to both the operator in Davis and the officer in Hammon, and their counterparts in similar cases, collectively as "the police."


[122] *fn9 Our more recent cases, too, nearly all hold excludable under the Confrontation Clause materials that are plainly highly formal. See White v. Illinois, 502 U. S. 346, 365, n. 2 (1992) (Thomas, J., concurring in part and concurring in judgment). The only exceptions involve confessions of co-defendants to police, and those confessions appear to have either been formal due to their occurrence in custody or to have been formalized into signed documents. See Douglas v. Alabama, 380 U. S. 415, 416 (1965) (signed confession); Brookhart v. Janis, 384 U. S. 1 (1966) (signed confession taken after accomplice's arrest, see Brief for Petitioner in Brookhart v. Janis, O. T. 1965, No. 657, pp. 10-11); Bruton v. United States, 391 U. S. 123, 124 (1968) (custodial interrogation); Roberts v. Russell, 392 U. S. 293 (1968) (per curiam) (custodial interrogation following a warning that the co-defendant's statement could be used against her at trial, see Brief in Opposition, O. T. 1967, No. 920, pp. 5-6).


[123] *fn10 The possibility that an oral declaration of past fact to a police officer, if false, could result in legal consequences to the speaker, see ante, at 11-12, may render honesty in casual conversations with police officers important. It does not, however, render those conversations solemn or formal in the ordinary meanings of those terms.


[124] *fn11 See New York v. Quarles, 467 U. S. 649, 655-656, and n. 6 (1984) (subjective motivation of officer not relevant in considering whether the public safety exception to Miranda v. Arizona, 384 U. S. 436 (1966), is applicable); Rhode Island v. Innis, 446 U. S. 291, 301 (1980) (subjective intent of police officer to obtain incriminatory statement not relevant to whether an interrogation has occurred); Whren v. United States, 517 U. S. 806, 813 (1996) (refusing to evaluate Fourth Amendment reasonableness in light of the officers' actual motivations).


[125] *fn12 Although the police questioning in Hammon was ultimately reduced to an affidavit, all agree that the affidavit is inadmissible per se under our definition of the term "testimonial." Brief for Respondent in No. 05-5705, p. 46; Brief for United States as Amicus Curiae in No. 05-5705, p. 14.


[126] *fn13 Some of the factors on which the Court relies to determine that the police questioning in Hammon was testimonial apply equally in Davis. For example, while Hammon was "actively separated from the [victim]" and thereby "prevented ... from participating in the interrogation," Davis was apart from McCottry while she was questioned by the 911 operator and thus unable to participate in the questioning. Ante, at 2, 15. Similarly, "the events described [by McCottry] were over" by the time she recounted them to the 911 operator. Ibid. See 154 Wash. 2d 291, 295-296, 111 P. 3d 844, 846-847 (2005) (en banc).

Washington v. Recuenco, 126 S.Ct. 2546 (U.S. 06/26/2006)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 05-83


[3] 126 S.Ct. 2546


[4] June 26, 2006


[5] WASHINGTON, PETITIONER
v.
ARTURO R. RECUENCO


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM 2005


[8] Argued April 17, 2006


[9] After respondent threatened his wife with a handgun, he was convicted of second-degree assault based on the jury's finding that he had assaulted her "with a deadly weapon." A "firearm" qualifies as a "deadly weapon" under Washington law, but nothing in the verdict form specifically required the jury to find that respondent had engaged in assault with a "firearm," as opposed to any other kind of "deadly weapon." Nevertheless, the state trial court applied a 3-year firearm enhancement to respondent's sentence, rather than the 1-year enhancement that specifically applies to assault with a deadly weapon, based on the court's own factual findings that respondent was armed with a firearm. This Court then decided Apprendi v. New Jersey, 530 U. S. 466, holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," id., at 490, and Blakely v. Washington, 542 U. S. 296, clarifying that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict," id., at 303. Because the trial court could not have subjected respondent to a firearm enhancement based only on the jury's finding that respondent was armed with a "deadly weapon," the State conceded a Sixth Amendment Blakely violation before the Washington Supreme Court, but urged the court to find the Blakely error harmless. In vacating respondent's sentence and remanding for sentencing based solely on the deadly weapon enhancement, however, the court declared Blakely error to be "structural error," which will always invalidate a conviction under Sullivan v. Louisiana, 508 U. S. 275, 279.


[10] Held:


[11] 1. Respondent's argument that this Court lacks power to reverse because the Washington Supreme Court's judgment rested on adequate and independent state-law grounds is rejected. It is far from clear that respondent is correct that at the time of his conviction, state law provided no procedure for a jury to determine whether a defendant was armed with a firearm, so that it is impossible to conduct harmless-error analysis on the Blakely error in his case. The correctness of respondent's interpretation, however, is not determinative of the question the State Supreme Court decided and on which this Court granted review, i.e., whether Blakely error can ever be deemed harmless. If respondent's reading of Washington law is correct, that merely suggests that he will be able to demonstrate that the Blakely violation in this particular case was not harmless. See Chapman v. California, 386 U. S. 18, 24. But it does not mean that Blakely error --which is of the same nature, whether it involves a fact that state law permits to be submitted to the jury or not -- is structural, or that this Court is precluded from deciding that question. Thus, the Court need not resolve this open question of Washington law. Pp. 3-4.


[12] 2. Failure to submit a sentencing factor to the jury is not "structural" error. If a criminal defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that most constitutional errors are subject to harmless-error analysis. E.g., Neder v. United States, 527 U. S. 1, 8. Only in rare cases has this Court ruled an error "structural," thus requiring automatic reversal. In Neder, the Court held that failure to submit an element of an offense to the jury -- there, the materiality of false statements as an element of the federal crimes of filing a false income tax return, mail fraud, wire fraud, and bank fraud, see id., at 20-25 -- is not structural, but is subject to Chapman's harmless-error rule, id., at 7-20. This case is indistinguishable from Neder. Apprendi makes clear that "[a]ny possible distinction between an `element' of a felony ... and a `sentencing factor' was unknown ... during the years surrounding our Nation's founding." 530 U. S., at 478. Accordingly, the Court has treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference between this case and Neder is that there the prosecution failed to prove the materiality element beyond a reasonable doubt, while here the prosecution failed to prove the "armed with a firearm" sentencing factor beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with Apprendi's recognition that elements and sentencing factors must be treated the same. Respondent attempts unpersuasively to distinguish Neder on the ground that the jury there returned a guilty verdict on the offenses for which the defendant was sentenced, whereas here the jury returned a guilty verdict only on the offense of second-degree assault, and an affirmative answer to the sentencing question whether respondent was armed with a deadly weapon. Because Neder's jury did not find him guilty of each of the elements of the offenses with which he was charged, its verdict is no more fairly described as a complete finding of guilt than is the verdict here. See 527 U. S., at 31. Pp. 5-9.


[13] 154 Wash. 2d 156, 110 P. 3d 188, reversed and remanded.


[14] Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Breyer, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Stevens, J., joined.


[15] On Writ Of Certiorari To The Supreme Court Of Washington Court Below: 110 P. 3d 188


[16] James M. Whisman argued the cause for petitioner. With him on the briefs were Norm Maleng and Brian M. McDonald.


[17] Patricia A. Millett argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Kannon K. Shanmugam.


[18] Gregory C. Link, by appointment of the Court, 546 U. S. ___, argued the cause for respondent. With him on the brief were Thomas M. Kummerow and Jeffrey L. Fisher.


[19] Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by John W. Suthers, Attorney General of Colorado, Allison H. Eid, Solicitor General, and John D. Seidel, Assistant Attorney General, by Christopher L. Morano, Chief State's Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, David W. M rquez of Alaska, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Thomas J. Miller of Iowa, Phill Kline of Kansas, G. Steven Rowe of Maine, Michael A. Cox of Michigan, Mike McGrath of Montana, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, and William Sorrell of Vermont; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.


[20] Robert N. Hochman, Pamela Harris, and Sheryl Gordon McCloud filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance.


[21] The opinion of the court was delivered by: Justice Thomas


[22] 548 U. S. ____ (2006)


[23] Respondent Arturo Recuenco was convicted of assault in the second degree based on the jury's finding that he assaulted his wife "with a deadly weapon." App. 13. The trial court applied a 3-year firearm enhancement to respondent's sentence based on its own factual findings, in violation of Blakely v. Washington, 542 U. S. 296 (2004). On appeal, the Supreme Court of Washington vacated the sentence, concluding that Blakely violations can never be harmless. We granted certiorari to review this conclusion, 546 U. S. ___ (2005), and now reverse.


[24] I.


[25] On September 18, 1999, respondent fought with his wife, Amy Recuenco. After screaming at her and smashing their stove, he threatened her with a gun. Based on this incident, the State of Washington charged respondent with assault in the second degree, i.e., "intentiona[l] assault . . . with a deadly weapon, to-wit: a handgun." App. 3. Defense counsel proposed, and the court accepted, a special verdict form that directed the jury to make a specific finding whether respondent was "armed with a deadly weapon at the time of the commission of the crime." Id., at 13. A "firearm" qualifies as a " `deadly weapon' " under Washington law. Wash. Rev. Code §9A.04.110(6) (2006). But nothing in the verdict form specifically required the jury to find that respondent had engaged in assault with a "firearm," as opposed to any other kind of "deadly weapon." The jury returned a verdict of guilty on the charge of assault in the second degree, and answered the special verdict question in the affirmative. App. 10, 13.


[26] At sentencing, the State sought the low end of the standard range sentence for assault in the second degree (three months). It also sought a mandatory 3-year enhancement because respondent was armed with a "firearm," §9.94A.533(3)(b), rather than requesting the 1-year enhancement that would attend the jury's finding that respondent was armed with a deadly weapon, §9.94A.533(4)(b). The trial court concluded that respondent satisfied the condition for the firearm enhancement, and accordingly imposed a total sentence of 39 months.


[27] Before the Supreme Court of Washington heard respondent's appeal, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely, supra. In Apprendi, we held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U. S., at 490. In Blakely, we clarified that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U. S., at 303 (emphasis in original). Because the trial court in this case could not have subjected respondent to a firearm enhancement based only on the jury's finding that respondent was armed with a "deadly weapon," the State conceded before the Supreme Court of Washington that a Sixth Amendment violation occurred under Blakely. 154 Wash. 2d 156, 162-164, 110 P. 3d 188, 191 (2005). See also Tr. of Oral Arg. 10-11.


[28] The State urged the Supreme Court of Washington to find the Blakely error harmless and, accordingly, to affirm the sentence. In Washington v. Hughes, 154 Wash. 2d 118, 110 P. 3d 192 (2005), however, decided the same day as the present case, the Supreme Court of Washington declared Blakely error to be " `structural' erro[r]" which " `will always invalidate the conviction.' " Id., at 142, 110 P. 3d 205 (quoting Sullivan v. Louisiana, 508 U. S. 275, 279 (1993)). As a result, the court refused to apply harmless-error analysis to the Blakely error infecting respondent's sentence. Instead, it vacated his sentence and remanded for sentencing based solely on the deadly weapon enhancement. 154 Wash. 2d, at 164, 110 P. 3d, at 192.


[29] II.


[30] Before reaching the merits, we must address respondent's argument that we are without power to reverse the judgment of the Supreme Court of Washington because that judgment rested on adequate and independent state-law grounds. Respondent claims that at the time of his conviction, Washington state law provided no procedure for a jury to determine whether a defendant was armed with a firearm. Therefore, he contends, it is impossible to conduct harmless-error analysis on the Blakely error in his case. Respondent bases his position on Hughes, in which the Supreme Court of Washington refused to "create a procedure to empanel juries on remand to find aggravating factors because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court." 154 Wash. 2d, at 151, 110 P. 3d, at 209. Respondent contends that, likewise, the Washington Legislature provided no procedure by which a jury could decide at trial whether a defendant was armed with a firearm, as opposed to a deadly weapon.


[31] It is far from clear that respondent's interpretation of Washington law is correct. See Washington v. Pharr, 131 Wn. App. 119, 124-125, 126 P. 3d 66, 69 (2006) (affirming the trial court's imposition of a firearm enhancement when the jury's special verdict reflected a finding that the defendant was armed with a firearm). In Hughes, the Supreme Court of Washington carefully avoided reaching the conclusion respondent now advocates, instead expressly recognizing that "[w]e are presented only with the question of the appropriate remedy on remand -- we do not decide here whether juries may be given special verdict forms or interrogatories to determine aggravating factors at trial." Id., at 149, 110 P. 3d, at 208. Accordingly, Hughes does not appear to foreclose the possibility that an error could be found harmless because the jury which convicted the defendant would have concluded, if given the opportunity, that a defendant was armed with a firearm.


[32] The correctness of respondent's interpretation of Washington law, however, is not determinative of the question that the Supreme Court of Washington decided and on which we granted review, i.e., whether Blakely error can ever be deemed harmless. If respondent is correct that Washington law does not provide for a procedure by which his jury could have made a finding pertaining to his possession of a firearm, that merely suggests that respondent will be able to demonstrate that the Blakely violation in this particular case was not harmless. See Chapman v. California, 386 U. S. 18, 24 (1967). But that does not mean that Blakely error -- which is of the same nature, whether it involves a fact that state law permits to be submitted to the jury or not -- is structural, or that we are precluded from deciding that question. Thus, we need not resolve this open question of Washington law.*fn1


[33] III.


[34] We have repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, " `most constitutional errors can be harmless.' " Neder v. United States, 527 U. S. 1, 8 (1999) (quoting Arizona v. Fulminante, 499 U. S. 279, 306 (1991)). " `[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.' " 527 U. S., at 8 (quoting Rose v. Clark, 478 U. S. 570, 579 (1986)). Only in rare cases has this Court held that an error is structural, and thus requires automatic reversal.*fn2 In such cases, the error "necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Neder, supra, at 9 (emphasis omitted).


[35] We recently considered whether an error similar to that which occurred here was structural in Neder, supra. Neder was charged with mail fraud, in violation of 18 U. S. C. §1341; wire fraud, in violation of §1343; bank fraud, in violation of §1344; and filing a false income tax return, in violation of 26 U. S. C. §7206(1). 527 U. S., at 6. At Neder's trial, the District Court instructed the jury that it " `need not consider' " the materiality of any false statements to convict Neder of the tax offenses or bank fraud, because materiality " `is not a question for the jury to decide.' " Ibid. The court also failed to include materiality as an element of the offenses of mail fraud and wire fraud. Ibid. We determined that the District Court erred because under United States v. Gaudin, 515 U. S. 506 (1995), materiality is an element of the tax offense that must be found by the jury. We further determined that materiality is an element of the mail fraud, wire fraud, and bank fraud statutes, and thus must be submitted to the jury to support conviction of those crimes as well. Neder, 527 U. S., at 20. We nonetheless held that harmless-error analysis applied to these errors, because "an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Id., at 9. See also Schriro v. Summerlin, 542 U. S. 348, 355-356 (2004) (rejecting the claim that Ring v. Arizona, 536 U. S. 584 (2002), which applied Apprendi to hold that a jury must find the existence of aggravating factors necessary to impose the death penalty, was a " ` "watershed rul[e] of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding,' " in part because we could not "confidently say that judicial factfinding seriously diminishes accuracy").


[36] The State and the United States urge that this case is indistinguishable from Neder. We agree. Our decision in Apprendi makes clear that "[a]ny possible distinction between an `element' of a felony offense and a `sentencing factor' was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation's founding." 530 U. S., at 478 (footnote omitted). Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of "armed with a firearm" to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.*fn3


[37] Respondent attempts to distinguish Neder on the ground that, in that case, the jury returned a guilty verdict on the offense for which the defendant was sentenced. Here, in contrast, the jury returned a guilty verdict only on the offense of assault in the second degree, and an affirmative answer to the sentencing question whether respondent was armed with a deadly weapon. Accordingly, respondent argues, the trial court's action in his case was the equivalent of a directed verdict of guilt on an offense (assault in the second degree while armed with a firearm) greater than the one for which the jury convicted him (assault in the second degree while armed with any deadly weapon). Rather than asking whether the jury would have returned the same verdict absent the error, as in Neder, respondent contends that applying harmless-error analysis here would " `hypothesize a guilty verdict that [was] never in fact rendered,' " in violation of the jury-trial guarantee. Brief for Respondent at 27 (quoting Sullivan, 508 U. S., at 279).


[38] We find this distinction unpersuasive. Certainly, in Neder, the jury purported to have convicted the defendant of the crimes with which he was charged and for which he was sentenced. However, the jury was precluded "from making a finding on the actual element of the offense." 527 U. S., at 10. Because Neder's jury did not find him guilty of each of the elements of the offenses with which he was charged, its verdict is no more fairly described as a complete finding of guilt of the crimes for which the defendant was sentenced than is the verdict here. See id., at 31 (Scalia, J., concurring in part and dissenting in part) ("[S]ince all crimes require proof of more than one element to establish guilt . . . it follows that trial by jury means determination by a jury that all elements were proved. The Court does not contest this"). Put another way, we concluded that the error in Neder was subject to harmless-error analysis, even though the District Court there not only failed to submit the question of materiality to the jury, but also mistakenly concluded that the jury's verdict was a complete verdict of guilt on the charges and imposed sentence accordingly. Thus, in order to find for respondent, we would have to conclude that harmless-error analysis would apply if Washington had a crime labeled "assault in the second degree while armed with a firearm," and the trial court erroneously instructed the jury that it was not required to find a deadly weapon or a firearm to convict, while harmless error does not apply in the present case. This result defies logic.*fn4


[39] Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. Accordingly, we reverse the judgment of the Supreme Court of Washington, and remand the case for further proceedings not inconsistent with this opinion.


[40] It is so ordered.


[41] Justice Kennedy, concurring.


[42] The opinions for the Court in Apprendi v. New Jersey, 530 U. S. 466 (2000), Blakely v. Washington, 542 U. S. 296 (2004), and their progeny were accompanied by dissents. The Court does not revisit these cases today, and it describes their holdings accurately. On these premises, the Court's analysis is correct. Cf. Ring v. Arizona, 536 U. S. 584, 613 (2002) (Kennedy, J., concurring). With these observations I join the Court's opinion.


[43] Justice Stevens, dissenting.


[44] Like Brigham City v. Stuart, 547 U. S. ___ (2006), and Kansas v. Marsh, 548 U. S. ___ (2006), this is a case in which the Court has granted review in order to make sure that a State's highest court has not granted its citizens any greater protection than the bare minimum required by the Federal Constitution. Ironically, the issue in this case is not whether respondent's federal constitutional rights were violated -- that is admitted -- it is whether the Washington Supreme Court's chosen remedy for the violation is mandated by federal law. As the discussion in Part II of the Court's opinion demonstrates, whether we even have jurisdiction to decide that question is not entirely clear. But even if our expansionist post-Michigan v. Long jurisprudence supports our jurisdiction to review the decision below, see 463 U. S. 1032 (1983), there was surely no need to reach out to decide this case. The Washington Supreme Court can, of course, reinstate the same judgment on remand, either for the reasons discussed in Part II of the Court's opinion, see ante, at 4, and n. 1, or because that court chooses, as a matter of state law, to adhere to its view that the proper remedy for Blakely errors, see Blakely v. Washington, 542 U. S. 296 (2004), is automatic reversal of the unconstitutional portion of a defendant's sentence. Moreover, because the Court does not address the strongest argument in respondent's favor -- namely, that Blakely errors are structural because they deprive criminal defendants of sufficient notice regarding the charges they must defend against, see ante, at 7, n. 3 --this decision will have a limited impact on other cases.


[45] As I did in Brigham City and Marsh, I voted to deny certiorari in this case. Given the Court's decision to reach the merits, however, I would affirm for the reasons stated in Justice Ginsburg's opinion, which I join.


[46] Ginsburg, J., dissenting


[47] Justice Ginsburg, with whom Justice Stevens joins, dissenting.


[48] Between trial and sentencing, respondent Arturo Recuenco's prosecutor switched gears. The information charged Recuenco with assault in the second degree, and further alleged that at the time of the assault, he was armed with a deadly weapon. App. 3. Without enhancement, the assault charge Recuenco faced carried a sentence of 3 to 9 months, id., at 15; Wash. Rev. Code §§9.94A.510, 9A.36.021(1)(c) (2004); the deadly weapon enhancement added one mandatory year to that sentence, §9.94A.533(4)(b).*fn5 The trial judge instructed the jury on both the assault charge and the deadly weapon enhancement. App. 7, 8. In connection with the enhancement, the judge gave the jurors a special verdict form and instructed them to answer "Yes or No" to one question only: "Was the defendant ... armed with a deadly weapon at the time of the commission of the crime of Assault in the Second Degree?" Id., at 13. The jury answered: "Yes." Ibid.


[49] Because the deadly weapon Recuenco held was in fact a handgun, the prosecutor might have charged, as an alternative to the deadly weapon enhancement, that at the time of the assault, Recuenco was "armed with a firearm." That enhancement would have added three mandatory years to the assault sentence. §9.94A.533(3)(b). The information charging Recuenco, however, did not allege the firearm enhancement. The jury received no instruction on it and was given no special verdict form posing the question: Was the defendant armed with a firearm at the time of the commission of the crime of Assault in the Second Degree? See 154 Wash. 2d 156, 160, 110 P. 3d 188, 190 (2005) ("The jury was not asked to, and therefore did not, return a special verdict that Recuenco committed the assault while armed with a firearm.").


[50] The prosecutor not only failed to charge Recuenco with assault while armed with a firearm and to request a special verdict tied to the firearm enhancement. He also informed the court, after the jury's verdict and in response to the defendant's motion to vacate: "The method under which the state is alleging and the jury found the assaul[t] committed was by use of a deadly weapon." App. 35. Leaving no doubt, the prosecutor further clarified: "[I]n the crime charged and the enhancement the state alleged, there is no elemen[t] of a firearm. The element is assault with a deadly weapon." Ibid. Recuenco was thus properly charged, tried, and convicted of second-degree assault while armed with a deadly weapon. It was a solid case; no gap was left to fill.


[51] Nevertheless, at sentencing, the prosecutor requested, and the trial judge imposed, a three-year mandatory enhancement for use of a firearm. Ibid. Recuenco objected to imposition of the firearm enhancement "without notice ... and a jury finding." 154 Wash. 2d, at 161, 110 P. 3d, at 190. Determining that there was no warrant for elevation of the charge once the trial was over, the Washington Supreme Court "remand[ed] for resentencing based solely on the deadly weapon enhancement which is supported by the jury's special verdict." Id., at 164, 110 P. 3d, at 192. I would affirm that judgment. No error marred the case presented at trial. The prosecutor charged, and the jury found Recuenco guilty of, a complete and clearly delineated offense: "assault in the second degree, being armed with a deadly weapon." The "harmless-error" doctrine was not designed to allow dislodgment of that error-free jury determination.


[52] I.


[53] Under Washington law and practice, assault with a deadly weapon and assault with a firearm are discrete charges, attended by discrete instructions. As the Court observes, ante, at 2, a charge of second-degree assault while armed with a deadly weapon, §9.94A.533(4)(b), subjects a defendant to an additional year in prison, and a charge of second-degree assault while armed with a firearm, §9.94A.533(3)(b), calls for an additional term of three years. "Deadly weapon," Washington law provides, encompasses any "implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death," including, inter alia, a "pistol, revolver, or any other firearm." §9.94A.602. "Firearm" is defined, more particularly, to mean "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." §9.41.010(1). A handgun (the weapon Recuenco held), it thus appears, might have been placed in both categories.*fn6


[54] Washington Pattern Jury Instructions, Criminal (WPIC) (West 2005 Supp.), set out three instructions for cases in which "an enhanced sentence is sought on the basis that the defendant was armed with a `deadly weapon,' " WPIC §2.06 (note on use): Deadly Weapon-General, §2.07; Deadly Weapon-Knife, §2.07.01; Deadly Weapon-Firearm, §2.07.02. When the prosecutor seeks an enhancement based on the charge that "the defendant was armed with a `firearm,' " §2.06, trial courts are directed to a different instruction, one keyed to the elevated enhancement, §2.10.01.


[55] Matching special verdict forms for trial-court use are also framed in the WPIC. When a "deadly weapon" charge is made, whether generally or with a knife or firearm, the prescribed form asks the jury: "Was the defendant (defendant's name) armed with a deadly weapon at the time of the commission of the crime [in Count __]?" §190.01. When a "firearm" charge is made, the jury is asked: "Was the defendant (defendant's name) armed with a firearm at the time of the commission of the crime [in Count __]?" §190.02.


[56] In Recuenco's case, the jury was instructed, in line with the "deadly weapon" charge made by the prosecutor, App. 6-7, and the special verdict form given to the jury matched that instruction. The form read:


[57] "We, the jury, return a special verdict by answering as follows:


[58] "Was the defendant ARTURO R. RECUENCO armed with a deadly weapon at the time of the commission of the crime of Assault in the Second Degree?


[59] "ANSWER: [YES] (Yes or No)." Id., at 13.


[60] No "firearm" instruction, WPIC §2.10.01 (West 2005 Supp.), was given to Recuenco's jury, nor was the jury given the special verdict form matching that instruction, §190.02; see supra, at 3-4, n. 2.


[61] II.


[62] In the Court's view, "this case is indistinguishable from Neder [v. United States, 527 U. S. 1 (1999)]." Ante, at 6. In that case, the trial judge made a finding necessary to fill a gap in an incomplete jury verdict. One of the offenses involved was tax fraud; the element missing from the jury's instruction was the materiality of the defendant's alleged misstatements. Under the mistaken impression that materiality was a question reserved for the court, the trial judge made the finding himself. In fact in Neder, materiality was not in dispute. See 527 U. S., at 7; see also id., at 15 (Neder "d[id] not suggest that he would introduce any evidence bearing upon the issue of materiality if so allowed."). "Reversal without any consideration of the effect of the error upon the verdict would [have] sen[t] the case back for retrial -- a retrial not focused at all on the issue of materiality, but on contested issues on which the jury [had been] properly instructed." Ibid. The Court concluded that the Sixth Amendment did not command that recycling.


[63] Here, in contrast to Neder, the charge, jury instructions, and special verdict contained no omissions; they set out completely all ingredients of the crime of second-degree assault with a deadly weapon. There is no occasion for any retrial, and no cause to displace the jury's entirely complete verdict with, in essence, a conviction on an uncharged greater offense.


[64] III.


[65] The standard form judgment completed and signed by the trial judge in this case included the following segment:


[66] "SPECIAL VERDICT OR FINDING(S):


[67] "(b) [ ] A special verdict/finding for being armed with a Firearm was rendered on Count(s) ___.


[68] "(c) [X] A special verdict/finding for being armed with a Deadly Weapon other than a firearm was rendered on Count(s) I." App. 14.


[69] Count I was identified on the judgment form as "ASSAULT IN THE 2ND DEGREE." Ibid. Despite the "X" placed next to the "Deadly Weapon" special verdict/finding, and the blanks left unfilled in the "Firearm" special verdict/finding lines, the trial judge imposed a sentence of 39 months (3 months for the assault, 36 months as the enhancement).


[70] Had the prosecutor alternatively charged both enhancements, and had the judge accurately and adequately instructed on both, giving the jury a special verdict form on each of the two enhancements, the jury would have had the prerogative to choose the lower enhancement. Specifically, the jury could have answered "Yes" (as it in fact did, see supra, at 4) to the "armed with a deadly weapon" inquiry while returning no response to the alternative "firearm" inquiry. See, supra, at 3, and n. 2 (Washington's statutory definition of "deadly weapon" overlaps definition of "firearm"); cf. United States v. Martin Linen Supply Co., 430 U. S. 564, 573 (1977) ("[R]egardless of how overwhelmingly the evidence may point in that direction[, t]he trial judge is ... barred from attempting to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused."). Today's decision, advancing a greater excluded (from jury control) offense notion, diminishes the jury's historic capacity "to prevent the punishment from getting too far out of line with the crime." United States v. Maybury, 274 F. 2d 899, 902 (CA2 1960) (Friendly, J.); see also Blakely v. Washington, 542 U. S. 296, 306 (2004) (recognizing jury's role "as circuitbreaker in the State's machinery of justice").


[71] ***


[72] In sum, Recuenco, charged with one crime (assault with a deadly weapon), was convicted of another (assault with a firearm), sans charge, jury instruction, or jury verdict. That disposition, I would hold, is incompatible with the Fifth and Sixth Amendments, made applicable to the States by the Fourteenth Amendment. I would therefore affirm the judgment of the Supreme Court of the State of Washington.



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Opinion Footnotes

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[73] *fn1 Respondent's argument that, as a matter of state law, the Blakely v. Washington, 542 U. S. 296 (2004), error was not harmless remains open to him on remand.


[74] *fn2 See Neder v. United States, 527 U. S. 1, 8 (1999) (citing Johnson v. United States, 520 U. S. 461, 468 (1997), in turn citing Gideon v. Wainwright, 372 U. S. 335 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474 U. S. 254 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U. S. 168 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U. S. 39 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U. S. 275 (1993) (defective reasonable-doubt instruction)).


[75] *fn3 Respondent also attempts to evade Neder by characterizing this as a case of charging error, rather than of judicial factfinding. Brief for Respondent 16-19. Because the Supreme Court of Washington treated the error as one of the latter type, we treat it similarly. See 154 Wash. 2d 156, 159-161, 110 P. 3d 188, 189-190 (2005) (considering "whether imposition of a firearm enhancement without a jury finding that Recuenco was armed with a firearm beyond a reasonable doubt violated Recuenco's Sixth Amendment right to a jury trial as defined by Apprendi v. New Jersey, 530 U. S. 466 [(2000)], and its progeny," and whether the Apprendi and Blakely error, if uninvited, could "be deemed harmless").


[76] *fn4 The Supreme Court of Washington reached the contrary conclusion based on language from Sullivan. See Washington v. Hughes, 154 Wash. 2d 118, 144, 110 P. 3d 192, 205 (2005) (" `There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate' " (quoting Sullivan, 508 U. S., at 279-280)). Here, as in Neder, "this strand of reasoning in Sullivan does provide support for [respondent]'s position." 527 U. S., at 11. We recognized in Neder, however, that a broad interpretation of our language from Sullivan is inconsistent with our case law. 527 U. S., at 11-15. Because the jury in Neder, as here, failed to return a complete verdict of guilty beyond a reasonable doubt, our rejection of Neder's proposed application of the language from Sullivan compels our rejection of this argument here.


[77] *fn5 Since Recuenco was charged, some of the relevant statutory provisions have been renumbered, without material revision. For convenience, we follow the Court's and the parties' citation practice and refer to the current provisions.


[78] *fn6 But see App. 38. When the prosecutor, post-trial but presentence, made it plain that he was seeking the three-year firearm enhancement rather than the one-year deadly weapon enhancement, Recuenco objected that the statutory definition of "firearm" had not been read to the jury, and that the prosecutor had submitted no evidence showing that Recuenco's handgun was "designed to fire a projectile by explosive such as gunpowder." Ibid.

Holmes v. South Carolina, 126 S.Ct. 1727 (U.S. 05/01/2006)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 04-1327


[3] 126 S.Ct. 1727


[4] May 1, 2006


[5] BOBBY LEE HOLMES, PETITIONER
v.
SOUTH CAROLINA


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM 2005


[8] Argued February 22, 2006


[9] At petitioner's South Carolina trial for murder and related crimes, the prosecution relied heavily on forensic evidence that strongly supported petitioner's guilt. Petitioner sought to undermine the State's forensic evidence by introducing expert testimony suggesting that the evidence had been contaminated and that the police had engaged in a plot to frame him. Petitioner also sought to introduce evidence that another man, Jimmy McCaw White, had been in the victim's neighborhood on the morning of the assault and that White had either acknowledged petitioner's innocence or admitted to committing the crimes himself. In White's pretrial testimony, he denied making the incriminating statements and provided an alibi for the time of the assault.


[10] The trial court excluded petitioner's third-party guilt evidence citing the State Supreme Court's Gregory decision, which held such evidence admissible if it raises a reasonable inference as to the defendant's own innocence, but inadmissible if it merely casts a bare suspicion or raises a conjectural inference as to another's guilt. Affirming the trial court, the State Supreme Court cited both Gregory and its later decision in Gay, and held that where there is strong forensic evidence of an appellant's guilt, proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence. Applying this standard, the court held that petitioner could not overcome the forensic evidence against him.


[11] Held: A criminal defendant's federal constitutional rights are violated by an evidence rule under which the defendant may not introduce evidence of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict. "[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." United States v. Scheffer, 523 U. S. 303, 308. This latitude, however, has limits. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.' " Crane v. Kentucky, 476 U. S. 683, 690. This right is abridged by evidence rules that "infring[e] upon a weighty interest of the accused" and are " `arbitrary' or `disproportionate to the purposes they are designed to serve.' " Scheffer, supra, at 308.


[12] While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. An application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. Such rules are widely accepted and are not challenged here.


[13] In Gregory, the South Carolina Supreme Court adopted and applied a rule intended to be of this type. In Gay and this case, however, that court radically changed and extended the Gregory rule by holding that, where there is strong evidence of a defendant's guilt, especially strong forensic evidence, proffered evidence about a third party's alleged guilt may (or perhaps must) be excluded. Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution's case: If the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues. Furthermore, as applied below, the rule seems to call for little, if any, examination of the credibility of the prosecution's witnesses or the reliability of its evidence.


[14] By evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied below did not heed this point, the rule is "arbitrary" in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end served by the rule. Thus, the rule violates a criminal defendant's right to have " `a meaningful opportunity to present a complete defense.' " Crane, supra, at 690. Pp. 4-11.


[15] 361 S. C. 333, 605 S. E. 2d 19, vacated and remanded.


[16] Alito, J., delivered the opinion for a unanimous Court.


[17] On Writ Of Certiorari To The Supreme Court Of South Carolina Court Below: 361 S. C. 333, 605 S. E. 2d 19


[18] John H. Blume argued the cause for petitioner. With him on the briefs were William A. Norris, Edward P. Lazarus, Michael C. Small, Mark J. MacDougall, Jeffrey P. Kehne, and Sheri L. Johnson.


[19] Donald J. Zelenka, Assistant Deputy Attorney General of South Carolina, argued the cause for respondent. With him on the brief were Henry D. McMaster, Attorney General, and John W. McIntosh, Chief Deputy Attorney General.


[20] Steffen N. Johnson argued the cause for the State of Kansas et al. as amici curiae urging affirmance. With him on the brief were Phill Kline, Attorney General of Kansas, Jared Maag, Deputy Attorney General, and Gene C. Schaerr, and the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, John W. Suthers of Colorado, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lawrence Wasden of Idaho, Gregory D. Stumbo of Kentucky, Michael A. Cox of Michigan, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, George J. Chanos of Nevada, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, and Greg Abbott of Texas. Briefs of amici curiae urging reversal were filed for Forty Professors of Evidence Law by Samuel R. Gross; and for the National Association of Criminal Defense Lawyers by Jeffrey T. Green and Richard E. Young. Elaine Metlin and Ann-Marie Luciano filed a brief of amicus curiae for the Innocence Project, Inc.


[21] The opinion of the court was delivered by: Justice Alito


[22] 547 U. S. ____ (2006)


[23] This case presents the question whether a criminal defendant's federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.


[24] I.


[25] On the morning of December 31, 1989, 86-year-old Mary Stewart was beaten, raped, and robbed in her home. She later died of complications stemming from her injuries. Petitioner was convicted by a South Carolina jury of murder, first-degree criminal sexual conduct, first-degree burglary, and robbery, and he was sentenced to death. State v. Holmes, 320 S. C. 259, 262, 464 S. E. 2d 334, 336 (1995). The South Carolina Supreme Court affirmed his convictions and sentence, and this Court denied certiorari. Ibid., cert. denied, 517 U. S. 1248 (1996). Upon state post-conviction review, however, petitioner was granted a new trial. 361 S. C. 333, 335, n. 1, 605 S. E. 2d 19, 20, n. 1 (2004).


[26] At the second trial, the prosecution relied heavily on the following forensic evidence:


[27] "(1) [Petitioner's] palm print was found just above the door knob on the interior side of the front door of the victim's house; (2) fibers consistent with a black sweatshirt owned by [petitioner] were found on the victim's bed sheets; (3) matching blue fibers were found on the victim's pink nightgown and on [petitioner's] blue jeans; (4) microscopically consistent fibers were found on the pink nightgown and on [petitioner's] underwear; (5) [petitioner's] underwear contained a mixture of DNA from two individuals, and 99.99% of the population other than [petitioner] and the victim were excluded as contributors to that mixture; and (6) [petitioner's] tank top was found to contain a mixture of [petitioner's] blood and the victim's blood." Id., at 343, 605 S. E. 2d, at 24.


[28] In addition, the prosecution introduced evidence that petitioner had been seen near Stewart's home within an hour of the time when, according to the prosecution's evidence, the attack took place. Id., at 337-338, 343, 605 S. E. 2d, at 21, 24.


[29] As a major part of his defense, petitioner attempted to undermine the State's forensic evidence by suggesting that it had been contaminated and that certain law enforcement officers had engaged in a plot to frame him. Id., at 339, 605 S. E. 2d, at 22. Petitioner's expert witnesses criticized the procedures used by the police in handling the fiber and DNA evidence and in collecting the fingerprint evidence. App. 299-311, 313-323. Another defense expert provided testimony that petitioner cited as supporting his claim that the palm print had been planted by the police. Id., at 326-327.


[30] Petitioner also sought to introduce proof that another man, Jimmy McCaw White, had attacked Stewart. 361 S. C., at 340, 605 S. E. 2d, at 22. At a pretrial hearing, petitioner proffered several witnesses who placed White in the victim's neighborhood on the morning of the assault, as well as four other witnesses who testified that White had either acknowledged that petitioner was " `innocent' " or had actually admitted to committing the crimes. Id., at 340-342, 605 S. E. 2d, at 22-23. One witness recounted that when he asked White about the "word ... on the street" that White was responsible for Stewart's murder, White "put his head down and he raised his head back up and he said, well, you know I like older women." App. 119. According to this witness, White added that "he did what they say he did" and that he had "no regrets about it at all." Id., at 120. Another witness, who had been incarcerated with White, testified that White had admitted to assaulting Stewart, that a police officer had asked the witness to testify falsely against petitioner, and that employees of the prosecutor's office, while soliciting the witness' cooperation, had spoken of manufacturing evidence against petitioner. Id., at 38-50. White testified at the pretrial hearing and denied making the incriminating statements. 361 S. C., at 341-342, 605 S. E. 2d, at 23. He also provided an alibi for the time of the crime, but another witness refuted his alibi. Id., at 342, 605 S. E. 2d, at 23.


[31] The trial court excluded petitioner's third-party guilt evidence citing State v. Gregory, 198 S. C. 98, 16 S. E. 2d 532 (1941), which held that such evidence is admissible if it " `raise[s] a reasonable inference or presumption as to [the defendant's] own innocence' " but is not admissible if it merely " `cast[s] a bare suspicion upon another' " or " `raise[s] a conjectural inference as to the commission of the crime by another.' " App. 133-134 (quoting Gregory, supra, at 104, 16 S. E. 2d, at 534). On appeal, the South Carolina Supreme Court found no error in the exclusion of petitioner's third-party guilt evidence. Citing both Gregory and its later decision in State v. Gay, 343 S. C. 543, 541 S. E. 2d 541 (2001), the State Supreme Court held that "where there is strong evidence of an appellant's guilt, especially where there is strong forensic evidence, the proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence." 361 S. C., at 342-343, 605 S. E. 2d, at 24. Applying this standard, the court held that petitioner could not "overcome the forensic evidence against him to raise a reasonable inference of his own innocence." Id., at 343, 605 S. E. 2d, at 24. We granted certiorari. 545 U. S. ___ (2005).


[32] II.


[33] "[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." United States v. Scheffer, 523 U. S. 303, 308 (1998); see also Crane v. Kentucky, 476 U. S. 683, 689-690 (1986); Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983); Chambers v. Mississippi, 410 U. S. 284, 302-303 (1973); Spencer v. Texas, 385 U. S. 554, 564 (1967). This latitude, however, has limits. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.' " Crane, supra, at 690 (quoting California v. Trombetta, 467 U. S. 479, 485 (1984); citations omitted). This right is abridged by evidence rules that "infring[e] upon a weighty interest of the accused" and are " `arbitrary' or `disproportionate to the purposes they are designed to serve.' " Scheffer, supra, at 308 (quoting Rock v. Arkansas, 483 U. S. 44, 58, 56 (1987)).


[34] This Court's cases contain several illustrations of "arbitrary" rules, i.e., rules that excluded important defense evidence but that did not serve any legitimate interests. In Washington v. Texas, 388 U. S. 14 (1967), state statutes barred a person who had been charged as a participant in a crime from testifying in defense of another alleged participant unless the witness had been acquitted. As a result, when the defendant in Washington was tried for murder, he was precluded from calling as a witness a person who had been charged and previously convicted of committing the same murder. Holding that the defendant's right to put on a defense had been violated, we noted that the rule embodied in the statutes could not "even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury" since the rule allowed an alleged participant to testify if he or she had been acquitted or was called by the prosecution. Id., at 22-23.


[35] A similar constitutional violation occurred in Chambers v. Mississippi, supra. A murder defendant called as a witness a man named McDonald, who had previously confessed to the murder. When McDonald repudiated the confession on the stand, the defendant was denied permission to examine McDonald as an adverse witness based on the State's " `voucher' rule," which barred parties from impeaching their own witnesses. Id., at 294. In addition, because the state hearsay rule did not include an exception for statements against penal interest, the defendant was not permitted to introduce evidence that McDonald had made self-incriminating statements to three other persons. Noting that the State had not even attempted to "defend" or "explain [the] underlying rationale" of the "voucher rule," id., at 297, this Court held that "the exclusion of [the evidence of McDonald's out-of-court statements], coupled with the State's refusal to permit [the defendant] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process," id., at 302.


[36] Another arbitrary rule was held unconstitutional in Crane v. Kentucky, supra. There, the defendant was prevented from attempting to show at trial that his confession was unreliable because of the circumstances under which it was obtained, and neither the State Supreme Court nor the prosecution "advanced any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence." Id., at 691.


[37] In Rock v. Arkansas, supra, this Court held that a rule prohibiting hypnotically refreshed testimony was unconstitutional because "[w]holesale inadmissibility of a defendant's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnotic recollections." Id., at 61. By contrast, in United States v. Scheffer, supra, we held that a rule excluding all polygraph evidence did not abridge the right to present a defense because the rule "serve[d] several legitimate interests in the criminal trial process," was "neither arbitrary nor disproportionate in promoting these ends," and did not "implicate a sufficiently weighty interest of the defendant." Id., at 309.


[38] While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. See, e.g., Fed. Rule Evid. 403; Uniform Rule of Evid. 45 (1953); ALI, Model Code of Evidence Rule 303 (1942); 3 J. Wigmore, Evidence §§1863, 1904 (1904). Plainly referring to rules of this type, we have stated that the Constitution permits judges "to exclude evidence that is `repetitive ... , only marginally relevant' or poses an undue risk of `harassment, prejudice, [or] confusion of the issues.' " Crane, supra, at 689-690 (quoting Delaware v. Van Arsdall, 475 U. S. 673, 679 (1986); ellipsis and brackets in original). See also Montana v. Egelhoff, 518 U. S. 37, 42 (1996) (plurality opinion) (terming such rules "familiar and unquestionably constitutional").


[39] A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. See, e.g., 41 C. J. S., Homicide §216, pp. 56-58 (1991) ("Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded"); 40A Am. Jur. 2d, Homicide §286, pp. 136-138 (1999) ("[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged ... . [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial" (footnotes omitted)). Such rules are widely accepted,*fn1 and neither petitioner nor his amici challenge them here.


[40] In Gregory, the South Carolina Supreme Court adopted and applied a rule apparently intended to be of this type, given the court's references to the "applicable rule" from Corpus Juris and American Jurisprudence:


[41] " `[E]vidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible... . [B]efore such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.' " 198 S. C., at 104-105, 16 S. E. 2d, at 534-535 (quoting 16 C. J., Criminal Law §1085, p. 560 (1918) and 20 Am. Jur., Evidence §265, p. 254 (1939); footnotes omitted).


[42] In Gay and this case, however, the South Carolina Supreme Court radically changed and extended the rule. In Gay, after recognizing the standard applied in Gregory, the court stated that "[i]n view of the strong evidence of appellant's guilt -- especially the forensic evidence -- ... the proffered evidence ... did not raise `a reasonable inference' as to appellant's own innocence." Gay, 343 S. C., at 550, 541 S. E. 2d, at 545 (quoting Gregory, supra, at 104, 16 S. E. 2d, at 534, in turn quoting 16 C. J., §1085, at 560). Similarly, in the present case, as noted, the State Supreme Court applied the rule that "where there is strong evidence of [a defendant's] guilt, especially where there is strong forensic evidence, the proffered evidence about a third party's alleged guilt" may (or perhaps must) be excluded. 361 S. C., at 342, 605 S. E. 2d, at 24.


[43] Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution's case: If the prosecution's case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues.


[44] Furthermore, as applied in this case, the South Carolina Supreme Court's rule seems to call for little, if any, examination of the credibility of the prosecution's witnesses or the reliability of its evidence. Here, for example, the defense strenuously claimed that the prosecution's forensic evidence was so unreliable (due to mishandling and a deliberate plot to frame petitioner) that the evidence should not have even been admitted. The South Carolina Supreme Court responded that these challenges did not entirely "eviscerate" the forensic evidence and that the defense challenges went to the weight and not to the admissibility of that evidence. Id., at 343, n. 8, 605 S. E. 2d, at 24, n. 8. Yet, in evaluating the prosecution's forensic evidence and deeming it to be "strong" -- and thereby justifying exclusion of petitioner's third-party guilt evidence -- the South Carolina Supreme Court made no mention of the defense challenges to the prosecution's evidence.


[45] Interpreted in this way, the rule applied by the State Supreme Court does not rationally serve the end that the Gregory rule and its analogues in other jurisdictions were designed to promote, i.e., to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues. The rule applied in this case appears to be based on the following logic: Where (1) it is clear that only one person was involved in the commission of a particular crime and (2) there is strong evidence that the defendant was the perpetrator, it follows that evidence of third-party guilt must be weak. But this logic depends on an accurate evaluation of the prosecution's proof, and the true strength of the prosecution's proof cannot be assessed without considering challenges to the reliability of the prosecution's evidence. Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. And where the credibility of the prosecution's witnesses or the reliability of its evidence is not conceded, the strength of the prosecution's case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case.


[46] The rule applied in this case is no more logical than its converse would be, i.e., a rule barring the prosecution from introducing evidence of a defendant's guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, the petitioner proffered evidence that, if believed, squarely proved that White, not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of the petitioner's guilt.


[47] The point is that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is "arbitrary" in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant's right to have " `a meaningful opportunity to present a complete defense.' " Crane, 476 U. S., at 690 (quoting Trombetta, 467 U. S., at 485).


[48] III.


[49] For these reasons, we vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion.


[50] It is so ordered.



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Opinion Footnotes

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[51] *fn1 See, e.g., Smithart v. State, 988 P. 2d 583, 586-587 (Alaska 1999); Shields v. State, 357 Ark. 283, 287-288, 166 S. W. 3d 28, 32 (2004); People v. Hall, 41 Cal. 3d 826, 833, 718 P. 2d 99, 103-104 (1986) (en banc); People v. Mulligan, 193 Colo. 509, 517-518, 568 P. 2d 449, 456-457 (1977) (en banc); State v. West, 274 Conn. 605, 624-627, 877 A. 2d 787, 802-803 (2005); Winfield v. United States, 676 A. 2d 1 (DC App. 1996) (en banc); Klinect v. State, 269 Ga. 570, 573, 501 S. E. 2d 810, 813-814 (1998); State v. Rabellizsa, 79 Haw. 347, 350-351, 903 P. 2d 43, 46-47 (1995); People v. Fort, 248 Ill. App. 3d 301, 314, 618 N. E. 2d 445, 455 (1993); State v. Adams, 280 Kan. 494, 504-507, 124 P. 3d 19, 27-29 (2005); Beaty v. Commonwealth, 125 S. W. 3d 196, 207-208 (Ky. 2003); State v. Dechaine, 572 A. 2d 130, 134 (Me. 1990); Commonwealth v. Scott, 408 Mass. 811, 815-816, 564 N. E. 2d 370, 374-375 (1990); State v. Jones, 678 N. W. 2d 1, 16-17 (Minn. 2004); Moore v. State, 179 Miss. 268, 274-275, 175 So. 183, 184 (1937); State v. Chaney, 967 S. W. 2d 47, 55 (Mo. 1998) (en banc); State v. Cotto, 182 N. J. 316, 332-333, 865 A. 2d 660, 669-670 (2005); Gore v. State, 2005 OK CR 14, ¶¶13-24, 119 P. 3d 1268, 1272-1276; State v. Gregory, 198 S. C. 98, 104-105, 16 S. E. 2d 532, 534-535 (1941); Wiley v. State, 74 S. W. 3d 399, 405-408 (Tex. Crim. App. 2002); State v. Grega, 168 Vt. 363, 375, 721 A. 2d 445, 454 (1998); State v. Thomas, 150 Wash. 2d 821, 856-858, 83 P. 3d 970, 988 (2004) (en banc); State v. Parr, 207 W. Va. 469, 475, 534 S. E. 2d 23, 29 (2000) (per curiam); State v. Denny, 120 Wis. 2d 614, 622-625, 357 N. W. 2d 12, 16-17 (Wis. App. 1984).