Amendment 14 — Evidentiary Requirements In Criminal Cases

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Beyond the general rule that the prosecution must prove a criminal defendant’s guilt beyond a reasonable doubt,[1](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn1amd14 " See . ") the Due Process Clause also imposes certain limitations on specific evidentiary matters in criminal trials. For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding hypnotically refreshed testimony.[2](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn2amd14 " Rock v. Arkansas, 483 U.S. 44 (1987). ") And, though a state may require a defendant to give pretrial notice of an intention to rely on an alibi defense and to furnish the names of supporting witnesses, due process calls for reciprocal discovery in such circumstances, requiring the state to give the defendant pretrial notice of its rebuttal evidence on the alibi issue.[3](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn3amd14 " Wardius v. Oregon, 412 U.S. 470 (1973). ")

In evaluating whether certain procedures satisfy due process, the Court may consider how separate procedures interact. The combination of otherwise acceptable rules of criminal procedure may in some instances deny a defendant due process. Thus, in one case, the Court found that a defendant was denied his constitutional right to present his defense in a meaningful way by the combination of two rules that (1) denied the defendant the right to cross-examine his own witness in order to elicit exculpatory evidence and (2) denied him the right to introduce the testimony of witnesses about matters told to them out of court on the ground that the testimony would be hearsay.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn4amd14 " Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415 U.S. 308 (1974) (refusal to permit defendant to examine prosecution witness about his adjudication as juvenile delinquent and status on probation at time, in order to show possible bias, was due process violation, although general principle of protecting anonymity of juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986) (exclusion of testimony as to circumstances of a confession can deprive a defendant of a fair trial when the circumstances bear on the credibility as well as the voluntariness of the confession); Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning rule that evidence of third-party guilt can be excluded if there is strong forensic evidence establishing defendant’s culpability). But see Montana v. Egelhoff, 518 U.S. 37 (1996) (state may bar defendant from introducing evidence of intoxication to prove lack of mens rea). ") Conversely, a questionable procedure may be saved by its combination with another. Thus, in another case, the Court held that it does not deny a defendant due process to subject him to trial before a non-lawyer police court judge when he can obtain a later trial de novo in the state’s court system.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn5amd14 " North v. Russell, 427 U.S. 328 (1976). ")

The government violates the Due Process Clause when it obtains a conviction by presenting testimony the prosecuting authorities know was perjured. In one case, the Court stated in dictum that the clause

cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.[6](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn6amd14 " Mooney v. Holohan, 294 U.S. 103, 112 (1935). ")

The Court has applied that principle to require state officials to controvert allegations that knowingly false testimony had been used to convict[7](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn7amd14 " Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941). ") and to overturn convictions found to have been so procured.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn8amd14 " Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957). In the former case, the principal prosecution witness was the defendant’s accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband’s killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant’s guilt. Cf. Durley v. Mayo, 351 U.S. 277 (1956). But see Smith v. Phillips, 455 U.S. 209, 218–21 (1982) (prosecutor’s failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated). ") Extending the principle, the Court in Miller v. Pate overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts found near the scene of a crime belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts, the shorts were not in fact bloodstained, and the prosecution had known those facts.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn9amd14 " 386 U.S. 1 (1967). ")

This line of reasoning has also required disclosure to the defense of information that the prosecution did not rely on at trial.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn10amd14 " The Constitution does not require the government, prior to entering into a binding plea agreement with a criminal defendant, to disclose impeachment information relating to any informants or other witnesses against the defendant. United States v. Ruiz, 536 U.S. 622 (2002). Nor has it been settled whether inconsistent prosecutorial theories in separate cases can be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court remanded case to determine whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new evidence, the accomplice had done the shooting). ") In Brady v. Maryland, the Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” [11](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn11amd14 " 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements that had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257–58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18 U.S.C. § 3500. ") In that case, the prosecution had suppressed an extrajudicial confession of defendant’s accomplice that he had actually committed the murder.[12](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn12amd14 " Although the state court in Brady had allowed a partial retrial so that the accomplice’s confession could be considered in the jury’s determination of whether to impose capital punishment, it had declined to order a retrial of the guilt phase of the trial. The Court rejected the defendant’s appeal of the latter decision. As the Court saw it, the issue was whether the state court could have excluded the defendant’s confessed participation in the crime on evidentiary grounds, as the defendant had confessed to facts sufficient to establish grounds for the crime charged. ") In a subsequent case, the Court described the “heart of the holding in Brady” as concerning

the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases#fn13amd14 " Moore v. Illinois, 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no due process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case). The Court has not extended Brady toward a general requirement of criminal discovery. See Giles v. Maryland, 386 U.S. 66 (1967). In Cone v. Bell, 556 U.S. 449, 472, 476 (2009), the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant’s conviction, the lower courts had erred in failing to assess its effect with respect to the defendant’s capital sentence. ")

In United States v. Agurs, the Court summarized and expanded the prosecutor’s o