Defendant's Response to Interrogatories, Martha Kirkland

    NOTE: Where it is deemed desirable, a syllabus (headnote) will 
be released, as is being done in connection with this case, at the time 
the opinion is issued. The syllabus constitutes no part of the opinion 
of the Court but has been prepared by the Reporter of Decisions for 
the convenience of the reader. See United States v. Detroit Lumber 
Co., 200 U.S. 321, 337.

SUPBEME COUKT OF THE UNITED STATES
Syllabus

McGAUTHA v. CALIFORNIA

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA 

No. 208. Argued November 9. 1970— Decided May 8. 1971*

Petitioner in No. 203 was convicted of first-degree murder in Cali­
fornia, and was sentenced to death. The penalty was left to the 
jury’s absolute discretion, and punishment was determined in a 
separate proceeding following the trial on the issue of guilt. Peti­
tioner in No. 204 was convicted of first-degree murder, and was 
sentenced to death in Ohio, where the jury, which also had abso­
lute penalty discretion, determined guilt and penalty after a single 
trial and in a single verdict. Certiorari was granted to consider 
whether petitioners’ rights were infringed by permitting the death 
penalty without standards to govern its imposition, and in No. 204, 
to consider the constitutionality of a single guilt and punishment 
proceeding. Held:

1. In light of history, experience, and the limitations of human 
knowledge in establishing definitive standards, it is impossible to 
say that leaving to the untrammeled discretion of the jury the 
power to pronounce life or death in capital cases violates any pro­
vision of the Constitution. Pp. 12-24.

2. The Constitution does not prohibit the States from consider­
ing that the compassionate purposes of jury sentencing in capital 
cases are better served by having the issues of guilt and punish­
ment resolved in a single trial than by focusing the jury’s attention 
solely on punishment after guilt has been determined. Pp. 24—38.

(a) Petitioner in No. 204 has failed to show that his unitary 
trial violated the Constitution by forcing "the making of difficult 
judgments” in his decision whether to remain silent on the issue 
of guilt at the cost of surrendering his chance to plead his case

^Together with No. 204, Crompton v. Ohio, on certiorari to the 
Supreme Court of Ohio.

i



I[ McGAlJTHA v. CALIFORNIA

Syllabus

on the punishment issue. Simmons v. United States, .390 U. 8. 
377. distinguished. Pp. 27-29.

(h) The policies of the privilege against self-incrimination are 
not offended when a defendant in a capital case yields to the pres­
sure to testify on the issue of punishment at the risk of damaging 
his case on guilt. Pp. 29-34.

(c) Ohio does provide for the common-law ritual of allocution, 
hut the State need not provide petitioner an opportunity to speak 
to the jury free from any adverse consequences on the issue of 
guilt. Pp. 34-37.

No. 203, 70 Cal. 2d 770. 452 P. 2d 050; and No. 204. IS Ohio St. 
2d 1S2. 24S X. E. 2d 014. affirmed.

Harlan. J., delivered the opinion of the Court, in which Burger, 
C. J.. and Stewart. W hite, and Black m u x , J.T., joined. Black, J., 
filed an opinion concurring in the result. D ouglas, J., filed an opin­
ion dissenting in No. 204. in which Brennan and M arshall, .1,1., 
joined. Brennan , J„ filed a dissenting opinion, in which D ouglas 
and M arshall. .1.1,, joined.



NOTICE : This opinion Is subject to formal revision before publication 
In the preliminary print of the United States Reports. Readers are re*
?nested to notify the Reporter of Decisions, Supreme Court of the 

Inlted States, Washington, D.C. 2<).r>43, of any typographical or other 
formal errors, in order that corrections may be made before the pre­
liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

Nos. 203 & 204.— October T erm, 1070

Dennis Councle McGautha, 
Petitioner,

203 v.
State of California.

On Writ of Certiorari to the 
Supreme Court of Cali­
fornia.

James Edward Crampton,
Petitioner, On Writ of Certiorari to the

204 v. Supreme Court of Ohio.
State of Ohio.

| May 3, 10711

M r. Justice H arlan delivered the opinion of the 
Court.

Petitioners McGautha and Crampton were convicted 
of murder in the first degree in the courts of California 
and Ohio respectively and sentenced to death pursuant to 
the statutes of those States. In each case the decision 
whether the defendant should live or die was left to the 
absolute discretion of the jury. In McGautha’s case the 
jury, in accordance with California law, determined pun­
ishment in a separate proceeding following the trial on the 
issue of guilt. In Crampton’s case, in accordance with 
Ohio law, the jury determined guilt and punishment after 
a single trial and in a single verdict. We granted certi­
orari in the McGautha case limited to the question 
whether petitioner’s constitutional rights were infringed 
by permitting the jury to impose the death penalty with­
out any governing standards. 398 U. S. 936 (1970). We 
granted certiorari in the Crampton case limited to that 
same question and to the further question whether the



203 <fc 204—OPINION

jury’s imposition of the death sentence in the same pro­
ceeding and verdict as determined the issue of guilt was 
constitutionally permissible. Ibid.1 * For the reasons 
that follow, we find no constitutional infirmity in the 
conviction of either petitioner, and we affirm in both 
cases.

T
It will put the constitutional issues in clearer focus to 

begin by setting out the course which each trial took.

A. McGautha’s Guilt Trial
McGautha and his codefendant Wilkinson were charged 

with committing two armed robberies and a murder on 
February 14, 1907." In accordance with California pro­
cedure in capital cases, the trial was in two stages, a guilt 
stage and a punishment stage.3 At the guilt trial the

2 McGAUTHA v. CALIFORNIA

1 The same two questions were included in our grant of certiorari 
in Maxwell v. Bishop, 303 U. S. 907 (1968), three years ago. 
After twice hearing argument in that case, see 395 U. S. 918 (1969), 
we remanded the case to the District Court for consideration of 
possible violations of the rule of Witherspoon v. Illinois, 301 U. S. 
510 (1068). 398 U. S. 262 (1970). In taking that course we at the 
same time granted certiorari in the McGautha and Crompton cases 
to consider the two questions thus pretermitted in Maxwell. See id.. 
at 267 n. 4.

-The information also alleged that McGautha had four prior 
felony convictions: felonious theft, robbery, murder without malice, 
and robbery by assault. The most recent of these convictions 
occurred in 1052. In a proceeding in chambers McGautha admitted 
the convictions, and the jury did not learn of them at the guilt 
stage of the trial.

•'‘ California Penal Code § 190.1 (West Supp. 1070) provides:
‘ 'The guilt or innocence of every person charged with an offense 

for which the penalty is in the alternative death or imprisonment 
for life shall first be determined, without a finding as to penalty. 
If such person has been found guilty of an offense punishable by 
life imprisonment or death, and has been found sane on any plea 
of not guilty by reason of insanity, there shall thereupon be further



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203 & 204—OPINION

chamber of his gun. Other evidence at the guilt stage 
was inconclusive on the issue as to who fired the fatal 
shot. The jury found both defendants guilty of two 
counts of armed robbery and one count of first-degree 
murder as charged.

B. McGautha’s Penalty Trial
At the penalty trial, which took place on the following 

day but before the same jury, the State waived its open­
ing, presented evidence of McGautha’s prior felony con­
victions and sentences, see n. 2, supra, and then rested. 
Y\ ilkinson testified in his own behalf, relating his un­
happy childhood in Mississippi as the son of a white 
father and a Negro mother, his honorable discharge from 
the Army on the score of his low intelligence, his regular 
attendance at church, and his good record for holding jobs 
and supporting his mother and siblings up to the time he 
was shot in the back in an unprovoked assault by a street 
gang. Thereafter, he testified, he had difficulty obtain­
ing or holding employment. About a year later he fell 
in with McGautha and his companions, and when they 
found themselves short of funds, one of the group sug­
gested that they “knock over somebody.” This was the 
first time, Wilkinson said, that he had ever had any 
thoughts of committing a robbery. He admitted partici­
pating in the two robberies but said he had not known 
that the stores were to be held up until McGautha drew 
his gun. He testified that it had been McGautha who 
struck Mrs. Smetana and shot Mr. Smetana.

Wilkinson called several witnesses in his behalf. An 
undercover narcotics agent testified that he had seen 
the murder weapon in McGautha’s possession and had 
seen McGautha demonstrating his quick draw. A min­
ister with whom W ilkinson had boarded testified to

ilkinson s church attendance and good reputation. He 
also stated that before trial Wilkinson had expressed his

4 McGAUTIIA v. CALIFORNIA



McGAUTHA v. CALIFORNIA 5

horror at what had liappened and requested the minister’s 
prayers on his behalf. A former fellow employee testified 
that Wilkinson had a good reputation and was honest 
and peaceable.

McGautha also testified in his own behalf at the pen­
alty hearing. He admitted that the murder weapon was 
his, but testified that he and Wilkinson had traded guns, 
and that it was Wilkinson who had struck Airs. Smetana 
and killed her husband. McGautha testified that he 
came from a broken home and that he had been wounded 
during World War II. He related his employment rec­
ord, medical condition, and remorse. He admitted his 
criminal record, see n. 2, supra, but testified that he had 
been a mere accomplice in two of those robberies and 
that his prior conviction for murder had resulted from 
a slaying in self-defense. McGautha also admitted to a 
1964 guilty plea to a charge of carrying a concealed 
weapon. He called no witnesses in his behalf.

The jury was instructed in the following language:
“ in this part of the trial the law does not forbid you 
from being influenced by pity for the defendants and 
you may be governed by mere sentiment and sym­
pathy for the defendants in arriving at a proper 
penalty in this case; however, the law does forbid 
you from being governed by mere conjecture, preju­
dice, public opinion or public feeling.

“ The defendants in this case have been found 
guilty of the offense of murder in the first degree, 
and it is now your duty to determine which of the 
penalties provided by law should be imposed on 
each defendant for that offense. Now in arriving 
at this determination you should consider all of the 
evidence received here in court presented by the 
People and defendants throughout the trial before 
this jury. Aou may also consider all of the evidence 
of the circumstances surrounding the crime, of each



203 & 204—OPINION

defendant’s background and history, and of the 
facts in aggravation or mitigation of the penalty 
which have been received here in court. However, 
it is not essential to your decision that you find 
mitigating circumstances on the one hand or evi­
dence in aggravation of the offense on the other 
hand.

6 McGAUTHA v. CALIFORNIA

. . Notwithstanding facts, if any, proved in 
mitigation or aggravation, in determining which 
punishment shall be inflicted, you are entirely free 
to act according to your own judgment, conscience, 
and absolute discretion. That verdict must express 
the individual opinion of each juror.

“Now, beyond prescribing the two alternative 
penalties, the law itself provides no standard for the 
guidance of the jury in the selection of the penalty, 
but, rather, commits the whole matter of determin­
ing which of the two penalties shall be fixed to the 
judgment, conscience, and absolute discretion of the 
jury. In the determination of that matter, if the 
jury does agree, it must be unanimous as to which 
of the two penalties is imposed.” App. 221-223.' 4

4 The penalty jury interrupted its deliberations to ask whether a 
sentence of life imprisonment meant that there was no possibility of 
parole. The trial judge responded as follows:

"A  sentence of life imprisonment means that the prisoner may 
be paroled at some time during his lifetime or that he may spend 
the remainder of his natural life in prison. An agency known as 
the Adult Authority is empowered by statute to determine if and 
when a prisoner is to be paroled, and under the statute no prisoner 
can be paroled unless the Adult Authority is of the opinion that the 
prisoner when released will assume a proper place in society and 
that his release is not contrary to the welfare of society. A prisoner 
released on parole may remain on parole for the balance of his



203 & 204—OPINION

Deliberations began in the early afternoon of Au­
gust 24, 1067. In response to jury requests the testimony 
of Mrs. Smetana and of three other witnesses was reread. 
Late in the afternoon of August 25 the jury returned 
verdicts fixing Wilkinson’s punishment at life imprison­
ment and McGautha’s punishment at death.

The trial judge ordered a probation report on Mc- 
Gautha. Having received it. he overruled McGautha’s 
mot ions for a new trial or for a modification of the penalty 
verdict, and pronounced the death sentence.5 Mc-

McGAUTHA v. CALIFORNIA 7

litc and it lie violates the terms of the parole lie may be returned 
to prison 1o serve the life sentence.

“ So that you will have no misunderstandings relating to a sentence 
of life imprisonment, you have been informed as to the general 
scheme of our parole system. You are now instructed, however, 
that the matter of parole is not to be considered by you in deter­
mining the punishment for either defendant, and you may not. 
speculate as to if. or when, parole would or would not be granted. 
It is not your function to decide now whether these men will be 
suitable for parole .at some future date. So far as you are concerned, 
you are to decide only whether these men shall suffer the death 
penalty or whether they shall be permitted 1o remain alive. I f  
upon consideration of the evidence you believe that life imprison­
ment is the proper sentence, you must assume that those officials 
charged with the operation of our parole system will perform their 
duty in a correct and responsible manner, and that they will not 
parole a defendant unless he can be safely released into society. It 
would be a violation of your duty as jurors if you were to fix the 
penalty at death because of a doubt that the Adult Authority will 
properly carry out its responsibilities.”  App. 224-225.

5 Under California law the trial judge has power to reduce ihe 
penalty to life if he concludes that the jury’s verdict is not supported 
by the weight of the evidence. Cal. Penal Code § 1181 (7). See 
In re Anderson, 69 Cal. 2d 613, 623, 73 Cal. Rptr. 21, 28, 447 P. 2d 
117, 124 (196S). The California Supreme Court, to which appeal 
is automatic in capital eases. Cal. Penal Code § 1239 (b ), has no' 
such power. People v. Lool:adoo, 66 Cal. 2d 307, 327, 57 Cal. Rptr.. 
60S, 621, 425 P. 2d 208, 221 (1967).



203 & 204—OPINION

Gautha’s conviction was unanimously affirmed by the 
California Supreme Court. 70 Cal. 2d 770, 76 Cal. Rptr. 
434, 452 P. 2d 650 (1069). His contention that stand­
ardless jury sentencing is unconstitutional was rejected 
on the authority of an earlier case, In re Anderson, 69 
Cal. 2d 613, 73 Cal. Rptr. 21, 447 P. 2d 117 (1968), in 
which that court had divided narrowly on the issue.

C. Crampton’s Trial
Petitioner Crampton was indicted for the murder of 

his wife, Wilma Jean, purposely and with premeditated 
malice. He pleaded not guilty and not guilty by reason 
of insanity.6 In accordance with the Ohio practice which 
he challenges, his guilt and punishment were determined 
in a single unitary proceeding.

At trial the State’s case was as follows. The Cramp- 
tons had been married about four months at the time of 
the murder. Two months before the slaying Crampton 
was allowed to leave the state mental hospital, where 
he was undergoing observation and treatment for alco­
holism and drug addiction, to attend the funeral of his 
wife’s father. On this occasion he stole a knife from the 
house of his late father-in-law and ran away. He called 
the house several times and talked to his wife, greatly 
upsetting her. When she pleaded with him to return to 
the hospital and stated that she would have to call the 
police, he threatened to kill her if she did. Wilma and 
her brother nevertheless did notify the authorities, who 
picked Crampton up later the same evening. There was 
testimony of other threats Crampton had made on his 
wife’s life, and it was revealed that about 10 days before

6 Pursuant to Ohio law, Ohio Rev. Code Ann. § 2945.40 (Page 
1954), Crampton was committed to a state mental hospital for a 
month of observation. After a hearing on the psychiatric report the 
trial court determined that Crampton was competent to stand trial.

S McGAUTHA v. CALIFORNIA



203 & 20-1— OPINION

the murder Mrs. Crampton’s fear of lier husband had 
caused her to request and receive police protection.

The State’s main witness to the facts surrounding the 
murder was one William Collins, a convicted felon who 
had first met Crampton when they, along with Cramp- 
ton’s brother Jack, were in the State Prison in Michigan. 
On January 14, 1967, three days before the murder, Col­
lins and Crampton met at Jack Crampton’s house in Pon­
tiac, Michigan. During those three days Collins and 
Crampton roamed the upper Midwest, committing a 
series of petty thefts and obtaining amphetamines, 
to which both were addicted, by theft and forged 
prescriptions.

About nine o ’clock on the evening of January 16, 
Crampton called his wife from St. Joseph, Michigan; 
after the call he told Collins that he had to get back to 
Toledo, where his wife was, as fast as possible. They 
arrived in the early morning hours of January 17. After 
Crampton had stopped by his wife’s home and sent Col­
lins to the door with a purported message for her, the 
two went to the home of Crampton’s mother-in-law, 
which Crampton knew to be empty, to obtain some guns. 
They broke in and stole a rifle, ammunition, and some 
handguns, including the .45 automatic which was later 
identified as the murder weapon. Crampton kept this 
gun with him. He indicated to Collins that he believed 
his wife was having an affair. He fired the .45 in the air, 
with a remark to the effect that “a slug of that type would 
do quite a bit of damage,” and said that if he found his 
wife with the man he suspected he would kill them both.

That evening Crampton called his wife’s home and 
learned that she was present. He quickly drove out to 
the house, and told Collins, “ Leave me off right here in 
front of the house and you take the car and go back to

McGAUTHA v. CALIFORNIA (>•



203 & 204—OPINION

the parking lot and if I ’m not there by six o'clock in the 
morning you’re on your own.”

About 11:20 that evening Crampton was arrested for 
driving a stolen car. The murder weapon was found 
between the seats of the car.

Airs. Crampton’s body was found the next morning. 
She had been shot in the face at close range while she 
was using the toilet. A .45 caliber shell casing was near 
the body. A jacket which Crampton had stolen a few 
days earlier Mas found in the living room. The coroner, 
Mho examined the body at 11:30 p. m. on January 18, 
testified that in his opinion death had occurred 24 hours- 
earlier, plus or minus four hours.

The defense called Crampton’s mother as a witness. 
She testified about Crampton’s background, including a 
serious concussion received at age nine, his good grades 
in junior high school, his stepfather’s jealousy of him, 
his leaving home at age 14 to live with various relatives, 
his enlistment in the Navy at age 17, his marriage to a 
girl named Sandra, the birth of a son, a divorce, then a 
remarriage to Sandra and another divorce shortly after, 
and finally his marriage to Wilma. Airs. Crampton also 
testified to Crampton’s drug addiction, to his brushes 
with the law as a youth and as an adult, and to his 
undesirable discharge from the Navy.

Crampton’s attorney also introduced into evidence a 
series of hospital reports which contained further infor­
mation on Crampton’s background, including his criminal 
record, which Mas substantial, his court-martial convic­
tion and undesirable discharge from the Navy, and 
the absence of any significant employment record. They 
also contained his claim that the shooting Mas accidental; 
that he had been gathering up guns around the house 
and had just removed the clip from an automatic M’lien 
his M’ife asked to see it; that as he handed it to her 
it M-ent off accidentally and killed her. All the reports

10 McGAUTHA v. CALIFORNIA



203 & 204—OPINION

concluded that Crampton was sane in both the legal and 
the medical senses. He was diagnosed as having a socio- 
pathic personality disorder, along with alcohol and drug 
addiction. Crampton himself did not testify.

The jury was instructed that
“ If you find the defendant guilty of murder in 

the first degree, the punishment is death, unless you 
recommend mercy, in which event the punishment 
is imprisonment in the penitentiary during life." 
App. 70.

The jury was given no other instructions specifically 
addressed to the decision whether to recommend mercy, 
but was told in connection with its verdict generally:

“You must not be influenced by any consideration 
of sympathy or prejudice. Tt is your duty to care­
fully weigh the evidence, to decide all disputed ques­
tions of fact, to apply the instructions of the court 
to your findings and to render your verdict accord­
ingly. In fulfilling your duty, your efforts must be 
to arrive at a just verdict.

“Consider all the evidence and make your find­
ing with intelligence and impartiality, and without 
bias, sympathy, or prejudice, so that the State of 
Ohio and the defendant will feel that their case was 
fairly and impartially tried.-’ App. 71-72.

The jury deliberated for over four hours and returned a 
verdict of guilty, with no recommendation for mercy.

Sentence was imposed about two weeks later. As Ohio 
law requires, Ohio Rev. Code Ann. § 2947.05 ( Page 1954), 
Crampton was informed of the verdict and asked whether 
he had anything to say as to why judgment should not 
be pronounced against him. He replied:

“ Please the Court, I don’t believe I received a 
fair and impartial trial because the jury was preju­

McGAUTHA v. CALIFORNIA 11



203 & 204—OPINION

diced by my past record and the fact I had been a 
drug addict, and T just believe I didn’t receive a 
fair and impartial trial. That’s all I have to say.”

This statement was found insufficient to justify not pro­
nouncing sentence upon him, and the court imposed the 
death sentence.7 Crampton’s appeals through the Ohio 
courts were unavailing. 18 Ohio St. 2d 182, 248 X. F. 
2d 614 (1969).

If
Before proceeding to a consideration of the issues be­

fore us, it is important to recognize and underscore the 
nature of our responsibilities in judging them. Our func­
tion is not to impose on the States, ex cathedra, what 
might seem to us a better system for dealing with capital 
cases. Rather it is to decide whether the Federal Con­
stitution proscribes the present procedures of these two 
States in such cases. In assessing the validity of the con­
clusions reached in this opinion, that basic factor should 
be kept constantly in mind.

I ll
We consider first McGautha’s and Crampton’s com­

mon claim: that the absence of standards to guide the 
jury’s discretion on the punishment issue is constitution­
ally intolerable. To fit their arguments within a consti­
tutional frame of reference petitioners contend that to 
leave the jury completely at large to impose or withhold 
the death penalty as it sees fit is fundamentally lawless 
and therefore violates the basic command of the Four­
teenth Amendment that no State shall deprive a person 
of his life without due process of law. Despite the

12 McGAUTHA v. CALIFORNIA

7 Under Ohio law, a jury’s death verdict may not be reduced as 
excessive by either the trial or the appellate court. Turner v. State, 
21 Ohio Law Abs. 276, 279-280 (Ct. App. 1936); State v. Klumpp, 
15 Ohio Ops. 2d 461, 46S, 175 N. E. 2d 767, 775-776 (Ct. App), 
appeal dismissed, 171 Ohio St. 62, 167 N. E. 2d 778 (1960).



203 & 204— OPINION

undeniable surface appeal of the proposition, we conclude 
that the courts below correctly rejected it.8

A
In order to see petitioners’ claim in perspective, it is 

useful to call to mind the salient features of the history 
of capital punishment for homicides under the common 
law in England, and subsequent statutory developments 
in this country. This history reveals continual efforts, 
uniformly unsuccessful, to identify before the fact those 
homicides for which the slayer should die. Thus, the 
laws of Alfred, echoing Exodus 21: 12-13, provided “ Let 
the man who slayeth another wilfully perish by death. 
Let him who slayeth another of necessity or unwillingly, 
or umvilfully, as God may have sent him into his hands, 
and for whom he has not lain in wait be worthy of his life 
and of lawful but if he seek an asylum.” Quoted in 3 J. 
Stephen, History of the Criminal Law of England 24 
(1883). In the 13th century, Bracton set it down that a

8 The lower courts thus placed themselves in accord with all other 
American jurisdictions which have considered the issue. See, e. g.,. 
In re Ernst, 294 F. 2d 556 (CA3 1961); Florida ex rel. Thomas v. 
Culver, 253 F. 2d 507 (CA5 1958); Maxwell v. Bishop, 398 F. 2d 
138 (CAS 196S), vacated on other grounds, 398 U. S. 262 (1970); 
Sims v. Eyman, 405 F. 2d 439 (CA9 1969); Segura v. Patterson, 402 
F. 2d 249 (CA10 1968) ; McCants v. State, 282 Ala. 397, 211 So. 2d 
877 (1968); Baglcy v. State, 247 Ark. 113, 444 S. W. 2d 567
(1969) ; State v. Walters, 145 Conn. 60, 138 A. 2d 786 (1958),. 

appeal dismissed, 358 U. S. 46 (1958); Wilson v. State, 225 So. 2d 
321 (Fla. 1969); Miller v. State, 224 Ga. 627, 163 S. E. 2d 730 
(196S); State v. Latham, 190 Kan. 411, 375 P. 2d 7S8 (1962):
Duisen v. State, ----- Mo. -----, 441 S. W. 2d 688 (1969); State v.
Johnson, 34 N. ,T. 212, 168 A. 2d 1, appeal dismissed, 368 U. S. 145 
(1961); People v. Fitzpatrick, 61 Misc. 2d 1043, 308 N. Y. S. 2d IS 
(Co. Ct. 1970); State v. Roseboro, 276 N. C. 185, 171 S. E. 2d 886
(1970) ; Hunter v. State, 222 Tenn. 672, 440 S. W. 2d 1 (1969); 

State v. Kelbacli, 23 Utah 2d 231, 461 P. 2d 297 (1969); Johnson v. 
Commonwealth, 208 Ya. 481, 15S S. E. 2d 725 (1968); State v.. 
Smith, 74 Wash. 2d 744, 446 P. 2d 571 (1968).

McGAUTHA v. CALIFORNIA 13



203 it 204—OPINION

man was responsible for all homicides except those which 
happened by pure accident or inevitable necessity, al­
though he did not explain the consequences of such re­
sponsibility. Id., at 35. The Statute of Gloucester, 6 
Edw. 1, c. 9 (1278), provided that in cases of self-defense 
or misadventure the jury should neither convict nor 
acquit, but should find the fact specially, so that the 
King could decide whether to pardon the accused. It 
appears that in time such pardons— which may not have 
prevented forfeiture of goods—came to issue as of course. 
3 Stephen, supra, at 36-42.

During all this time there was no clear distinction 
in terminology or consequences among the various kinds 
of criminal homicide. All were prima facie capital, but 
all were subject to the benefit of clergy, which after 1350 
came to be available to almost any man who could read. 
Although originally those entitled to benefit of clergy 
were simply delivered to the bishop for ecclesiastical pro­
ceedings, with the possibility of degradation from orders, 
incarceration, and corporal punishment for those found 
guilty, during the 15th and 16th centuries the maximum 
penalty for clergyable offenses became branding on the 
thumb, imprisonment for not more than one year, and 
forfeiture of goods. 1 Stephen, supra, at 459-464. By 
the statutes of 23 Hen. 8, c. 1, 3, 4 (1531), and 1 Edw.
6, c. 12, § 10 (1547), benefit of clergy was taken away 
in all cases of “murder of malice prepensed.” 1 Stephen, 
supra, at 464-465; 3 Stephen, supra, at 44. During the 
next century and a half, however, “malice prepense” or 
“malice aforethought” came to be divorced from actual ill 
will and inferred without more from the act of killing. 
Correspondingly, manslaughter, which was initially re­
stricted to cases of “chance medley,” came to include 
homicides where the existence of adequate provocation 
rebutted the inference of malice. 3 Stephen, supra, 
46-73.

14 McGAUTHA v. CALIFORNIA



203 A: 204—OPINION

The growth of the law continued in this country, where 
there was rebellion against the common-law rule im­
posing a mandatory death sentence on all convicted 
murderers. Thus, in 1794. Pennsylvania attempted to 
reduce the rigors of the law by abolishing capital punish­
ment except for “murder of the first degree,” defined to 
include all “ wilful, deliberate, and premeditated” killings, 
for which the death penalty remained mandatory. Pa. 
Laws 1794, c. 1766. This reform was soon copied by Vir­
ginia and thereafter by many other States.

This new legislative criterion for isolating crimes ap­
propriately punishable by death soon proved as unsuc­
cessful as the concept of “malice aforethought.” Within 
a year the distinction between the degrees of murder was 
practically obliterated in Pennsylvania, Sec Keedy, His­
tory of the Pennsylvania Statute Creating Degrees of 
Murder, 97 V. Pa, L. Rev. 769. 773-777 (1949). Other 
States had similar experiences. Wochsler & Michael. A 
Rationale of the Law of Homicide, 37 Colum. L. Rev. 701. 
707-709 (1937). The result was characterized in this 
way by Chief .Judge Cardozo, as he then was:

“ W hat we have is merely a privilege offered to the 
jury to find the lesser degree when the suddenness 
of the intent, the vehemence of the passion, seems 
to call irresistibly for the exercise of mercy. I have 
no objection to giving them this dispensing power, 
but it should be given to them directly and not in 
a mystifying cloud of words.” “What Medicine Can 
Do For Law” (1928) in Law and Literature 70, 100 
(1931).9

McGAUTHA v. CALIFORNIA 15

9 In context the emphasis is on the confusing distinction between 
degrees of murder, not the desirability of jury sentencing discretion. 
It may also be noted that the former New York definitions of first- 
and second-degree murder were somewhat unusual. See Weehsler A 
Michael, supra, 37 Colum. L. Rev., at 704 n. 13, 709 n. 26.



203 A 204—OPINION

At the same time, jurors on occasion took the law into 
their own hands in cases which were “ willful, deliberate, 
and premeditated" in any view of that phrase, but 
which nevertheless were clearly inappropriate for the 
death penalty. In such cases they simply refused to 
convict of the capital offense. See Report of the Royal 
Commission on Capital Punishment, 1949-1953, Cmd. 
8932, HIT 27-29 (1953); Andres v. United States, 333 U. S. 
740, 753 (Frankfurter, J., concurring); cf. H. Ivalven it 
H. Zeisel, The American Jury 306-312 (1966).

In order to meet the problem of jury nullification, 
legislatures did not try, as before, to refine further the 
definition of capital homicides. Instead they adopted 
the method of forthrightly granting juries the discretion 
which they had been exercising in fact. See Knowlton, 
Problems of Jury Discretion in Capital Cases, 101 U. Pa. 
L. Rev. 1099, 1102 and n. 18 (1953); Note, The Two- 
Trial System in Capital Cases, 39 N. Y. U. L. Rev. 50, 
52 (1964). Tennessee was the first State to give juries 
sentencing discretion in capital cases,10 Tenn. L. 1837- 
1838, c. 29, but other States followed suit, as did the 
Federal Government in 1897.11 Act of Jan. 15, 1897,

10 The practice of jury sentencing arose in this country during the 
colonial period for cases not involving capital punishment. It has 
been suggested that this was a “ reaction to harsh penalties imposed 
by judges appointed and controlled by the Crown” and a result of 
“ the early distrust of governmental power.” President’s Commission 
on Law Enforcement and Administration of Justice, Task Force 
Report: The Courts 26 (1967).

11 California and Ohio, the two States involved in these cases, 
abolished mandatory death penalties in favor of jury discretion in 
1874 and 1898. Act of Mar. 28, 1874, c. 508, Cal. Amendatory Acts 
1S73-1S74, at 457; 93 Ohio Laws 223. Except for four States that 
entirely abolished capital punishment in the middle of the last cen­
tury, every American jurisdiction has at some time authorized jury 
sentencing in capital cases. None of these statutes have provided 
standards for the choice between death and life imprisonment. See 
Brief for the United States as Amicus Curiae 128-137.

10 McGAUTHA v. CALIFORNIA



203 & 204—OPINION

c. 29, § 1, 29 Stat. 487. Shortly thereafter, in Winston 
v. United States, 172 U. S. 303 (1899), this Court dealt 
with the federal statute for the first time.'2 The Court 
reversed a murder conviction in which the trial judge in­
structed the jury that it should not return a recommen­
dation of mercy unless it found the existence of mitigating 
circumstances. The Court found this instruction to in­
terfere with the scheme of the Act to commit the whole 
question of capital punishment “to the judgment and the 
consciences of the jury.” Id., at 313.

How far considerations of age, sex, ignorance, ill­
ness or intoxication, of human passion or weak­
ness, of sympathy or clemency, or the irrevocable­
ness of an executed sentence of death, or an appre­
hension that explanatory facts may exist which 
have not been brought to light, or any other con­
sideration whatever, should be allowed weight in 
deciding the question whether the accused should 
or should not be capitally punished, is committed 
by the act of Congress to the sound discretion of 
the jury, and of the jury alone.” Ibid.

This Court subsequently had occasion to pass on the 
correctness of instructions to the jury with respect to 
recommendations of mercy in Andres v. United States, 
333 U. S. 740 (1948). The Court approved, as consistent 
with the governing statute, an instruction that

“ This power [to recommend mercy] is conferred 
solely upon you and in this connection the Court 
cannot extend or prescribe to you any definite 
rule defining the exercise of this power, but commits 12

12 Sec also Calton v. Utah, 130 U. S. S3 (1889), in which the- 
Court reversed a conviction under the statutes of Utah Territory 
in which the jury had not been informed of its right under the 
territorial code to recommend a sentence of imprisonment for life 
at hard labor instead of death.

McGAUTHA v. CALIFORNIA 17



201? A 204—OPINION

the entire matter of its exercise to your judgment.”
Id., at 743 n. 4.

The case was reversed, however, on the ground that 
other instructions on the power to recommend mercy 
might have been interpreted by the jury as requiring 
them to return an unqualified verdict of guilty unless they 
unanimously agreed that mercy should be extended. The 
Court determined that the proper construction was to 
require a unanimous decision to withhold mercy as well, 
on the ground among others that the latter construction 
was “more consonant with the general humanitarian pur­
pose of the statute.” Id., at 740. The only other sig­
nificant discussion of standardless jury sentencing in 
capital cases in our decisions is found in Witherspoon v. 
Illinois, 301 U. S. 510 (1068). In reaching its conclusion 
that persons with conscientious scruples against the death 
penalty could not be automatically excluded from sen­
tencing juries in capital cases, the Court relied heavily 
on the fact that such juries “do little' more—and must 
do nothing less—than express the conscience of the com­
munity on the ultimate question of life or death.” Id., 
at 510 (footnote omitted). The Court noted that “one 
of the most important functions any jury can perform in 
making such a selection is to maintain a link between 
contemporary community values and the penal system— 
a link without which the determination of punishment 
could hardly reflect ‘the evolving standards of decency 
that mark the progress of a maturing society.’ ” Id., at 
519 n. 15. The inner quotation is from the opinion of 
Mr. Chief Justice Warren for four members of the Court 
in Trop v. Dulles, 356 l '. S. 86, 101 ( 195S).

In recent years academic and professional sources have 
suggested that jury sentencing discretion should be 
controlled by standards of some sort. The American 
Law Institute first published such a recommendation in

18 McGAUTHA v. CALIFORNIA



203 iV 204—OPINION

1959.11 Several States have enacted new criminal codes 
in the intervening 12 years, some adopting features of 
the Model Penal Code.13 14 Other States have modified 
their laws with respect to murder and the death penalty 
in other ways.11 None of those States have followed the 
Model Penal Code and adopted statutory criteria for 
imposition of the death penalty. Tn recent years, chal­
lenges to standardless jury sentencing have been pre­
sented to many state and federal appellate courts. No

13 Model Penal Code § 201.fi (Tent. Draft No. 9, 1959). The 
criteria were revised and approved by the Institute in 1962 and 
now appear in §210.6 of the Proposed Official Draft of the Model 
Penal Code. As revised they appear in the Appendix to this 
opinion. More recently the National Commission on Reform of 
Federal Criminal Laws published a Study Draft of a New Federal 
Criminal Code (1970). Section 3605 contained standards virtually 
identical to those o f the Model Penal Code. The statement of the 
Chairman of the Commission, submitting the Study Draft for public 
comment, described it as “ something more than a staff report and 
something less than a commitment by the Commission or any of its 
members to every aspect of the Draft.” Study Draft, tit xx. The 
primary differences between the procedural provisions for capital 
sentencing in the Model Penal Code and those in the Study Draft are 
that the Code provides that the court and jury “ shall”  take the cri­
teria into account, while the Study Draft provided that they “may”  
do so: and the Model Penal Code forbids imposition of the death 
penalty where no aggravating circumstances are found, while the 
Study Draft showed this only as an alternative provision. The latter 
feature is affected by the fact that only a very few murders were 
to be made capital. See id.. at 307. Tn its Final Report (1971). the 
Commission recommended abolition of the death penalty for federal 
crimes. An alternate version, said to represent a "substantial body 
of opinion in the Commission,”  id., comment to provisional §3601, 
provided for retention of capital punishment for murder and treason 
with procedural provisions which did not significantly differ from 
those in the Study Draft.

14 See, c. (]., N. Y. Penal Law § 65.00 (1967) (criteria for judges 
in deciding on probation).

' :'F . g., N. M. Stat. Ann. § 40A-29-2.1 to § 40A-29-2.2 (Supp. 
1969). reducing the class of capital crimes.

McGAUTHA v. CALIFORNIA 19



203 it 204—OPINION

court has held the challenge good. See n. 8. supra. As 
petitioners recognize, it requires a strong showing to upset 
this settled practice of the Nation on constitutional 
grounds. See Walz v. Tax Commission, 397 U. S. 664, 
678 (1970); Jackman v. Rosenbaum Co., 260 U. S. 22, 31 
(1922); cf. Palko v. Connecticut. 302 I ’ . S. 319, 325 
(1937).

B
Petitioners seek to avoid the impact of this history by 

the observation that jury sentencing discretion in capital 
cases was introduced as a mechanism for dispensing 
mercy—a means for dealing with the rare case in which 
the death penalty was thought to be unjustified. Now, 
they assert, the death penalty is imposed on far fewer than 
half the defendants found guilty of capital crimes. The 
state and federal legislatures which provide for jury dis­
cretion in capital sentencing have, it is said, implicitly 
determined that some—indeed, the greater portion—of 
those guilty of capital crimes should be permitted to live. 
But having made that determination, petitioners argue, 
they have stopped short—the legislatures have not only 
failed to provide a rational basis for distinguishing the 
one group from the other, cf. Skinner v. Oklahoma, 316 
U. S. 535 (1942), but they have failed even to suggest any 
basis at all. Whatever the merits of providing such a 
mechanism to take account of the unforeseeable case 
calling for mercy, as was the original purpose, petitioners 
contend the mechanism is constitutionally intolerable as 
a means of selecting the extraordinary cases calling for 
the death penalty, which is its present-day function.

In our view, such force as this argument has derives 
largely from its generality. Those who have come to 
grips with the hard task of actually attempting to draft 
means of channeling capital sentencing discretion have 
confirmed the lesson taught by the history recounted 
above. To identify before the fact those characteristics

20 McGAIJTHA v. CALIFORNIA



203 & 204—OPINION

of criminal homicides and their perpetrators which call 
for the death penalty, and to express these characteristics 
in language which can be fairly understood and applied 
by the sentencing authority, appear to be tasks which 
are beyond present human ability.

thus the British Home Office, which before the recent 
abolition of capital punishment in that country had the 
responsibility for selecting the cases from England and 
Wales which should receive the benefit of the Royal 
Prerogative of Mercy, observed:

“The difficulty of defining by any statutory pro­
vision the types of murder which ought or ought 
not to be punished by death may be illustrated by 
reference to the many diverse considerations to which 
the Home Secretary has regard in deciding whether 
to recommend clemency. No simple formula can take 
account of the innumerable degrees of culpability, 
and no formula which fails to do so can claim to 
be just or satisfy public opinion.” 1-2 Royal Com­
mission on Capital Punishment, Minutes of Evi­
dence 13 (1949).

The Royal Commission accepted this view, and although 
it recommended a change in British practice to provide 
for discretionary power in the jury to find “ extenuating 
circumstances,” that term was to be left undefined; 
“ [t]he decision of the jury would be within their unfet­
tered discretion and in no sense governed by the prin­
ciples of law.” Report of the Royal Commission on 
Capital Punishment, 1949-1953, Cmd. 8932, IT 553 (b). 
The Commission went on to say, in substantial con­
firmation of the views of the Home Office:

“No formula is possible that would provide a 
reasonable criterion for the infinite variety of cir­
cumstances that may affect the gravity of the crime 
of murder. Discretionary judgment on the facts of

McGAUTHA v. CALIFORNIA 21



203 & 204—OPINION

each case is the only way in which they can be 
equitably distinguished. This conclusion is borne 
out bv American experience: there the experiment 
of degrees of murder, introduced long ago. has had 
to be supplemented by giving to the courts a dis­
cretion that in effect supersedes it." Id., fl 595.

The draftsmen of the Model Penal Code expressly 
agreed with the conclusion of the Royal Commission that 
“ the factors which determine whether the sentence of 
death is the appropriate penalty in particular cases are 
too complex to be compressed within the limits of a 
simple formula . . . .” Report U 498, quoted in Model 
Penal Code, 8 201.6, ( 'omment 3, at 71 (Tent. Draft No. 9, 
1959). The draftsmen did think, however, “ that it is 
within the realm of possibility to point to the main cir­
cumstances of aggravation and of mitigation that should 
be weighed and weighed against each other when they are 
presented in a concrete case." Ibid. The circumstances 
the draftsmen selected, set out in the Appendix to this 
opinion, were not intended to be exclusive. The Code 
provided simply that the sentencing authority should 
“take into account the aggravating and mitigating cir­
cumstances enumerated . . . and any other facts that 
it deems relevant,” and that the court should so in­
struct when the issue was submitted to the jury. Id., 
§ 210.6 (2) (Proposed Official Draft. 1962).10 The Final

lu The Model Penal Code provided that the jury should not fix 
punishment at death unless it found at least one of the aggravating 
circumstances and no sufficiently substantial mitigating circum­
stances. Model Penal Code §210.6(2) (Proposed Official Draft 
1962). As the reporter's comment recognized, there is no funda­
mental distinction between this procedure and a redefinition of the 
class of potentially capital murders. Model Penal Code §201.6, 
Comment 3, at 71-72 (Tent. Draft No. 9, 1959). As we understand 
these petitioners’ contentions, they seek standards for guiding the 
sentencing authority’s discretion, not a greater strictness in the 
definition of the class of cases in which the discretion exists. I f

22 McGAUTHA v. CALIFORNIA



203 & 204—OPINION

Report of the National Commission on Reform of 
Federal Criminal Laws (1671 ) recommended entire abo­
lition of the death penalty in federal cases. In a provi­
sional chapter, prepared for the contingency that Con­
gress might decide to retain the death penalty, the 
Report contains a set of criteria virtually identical with 
the aggravating and mitigating circumstances listed by 
the Model Penal Code. With respect to the use to be 
made of the criteria, the Report provides that: “ [i]n 
deciding whether a sentence of death should be imposed, 
the court and the jury, if any, may consider the miti­
gating and aggravating circumstances set forth in the 
subsections below.” Id., provisional §3604(1) (empha­
sis added).

It is apparent that such criteria do not purport to 
provide more than the most minimal control over the 
sentencing authority’s exercise of discretion. They do 
not purport to give an exhaustive list of the relevant 
considerations or the way in which they may be affected 
by the presence or absence of other circumstances. They 
do not even undertake to exclude constitutionally im­
permissible considerations.* 17 And, of course, they pro­
vide no protection against the jury determined to decide 
on whimsy or caprice. In short, they do no more than 
suggest some subjects for the jury to consider during 
its deliberations, and they bear witness to the intractable 
nature of the problem of “ standards” which the history 
of capital punishment has from the beginning reflected. 
Thus they indeed caution against this Court’s under­

we are mistaken in this, and petitioners contend that Ohio’s and 
California’s definitions of first-degree murder are too broad, we 
consider their position constitutionally untenable.

17 The issue whether a defendant is entitled to an instruction that 
certain factors such as race are not to be taken into consideration 
is not before us, as the juries were told not to base their decisions 
on “ prejudice,”  and no more specific instructions were requested. 
Cf. Griffin v. California, 3S0 U. S. 009, 614-615 and n. 6 (1965).

McGAUTHA v. CALIFORNIA 23



203 & 204—OPINION

taking to establish such standards itself, or to pronounce 
at large that standards in this realm are constitutionally 
required.

In light of history, experience, and the present limita­
tions of human knowledge, we find it quite impossible 
to say that committing to the untramelled discretion of 
the jury the power to pronounce life or death in capital 
cases is offensive to anything in the Constitution.18 The 
States are entitled to assume that jurors confronted with 
the truly awesome responsibility of decreeing death 
for a fellow human will act with due regard for the con­
sequences of their decision and will consider a variety 
of factors, many of which will have been suggested by 
the evidence or by the arguments of defense counsel. 
For a court to attempt to catalog the appropriate factors 
in this elusive area could inhibit rather than expand the 
scope of consideration, for no list of circumstances would 
ever be really complete. The infinite variety of cases 
and facets to each case would make general standards 
either meaningless “boiler-plate" or a statement of the 
obvious that no jury would need.

IV
As we noted at the outset of this opinion, McGautha’s 

trial was in two stages, with the jury considering the

18 Giaccio v. Pennsylvania, 3S2 U. S. 399 (19G6), does not point 
to a contrary result. In Giaccio the Court held invalid on its face 
a Pennsylvania statute which authorized criminal juries to assess 
costs against defendants whose conduct, although not amounting to 
the crime with which they were charged, was nevertheless found 
to be “ reprehensible.” The Court concluded that the statute was 
no more sound than one which simply made it a crime to engage 
in “ reprehensible conduct” and consequently that it was unconstitu­
tionally vague. The Court there stated:
“ [i]n  so holding we intend to cast no doubt whatever on the 
constitutionality of the settled practice of many States to leave to 
juries finding defendants guilty of a crime the power to fix punish­
ment within legally prescribed limits.” Id., at 405 n. 8.

24 McGAUTHA v. CALIFORNIA



20.'! & 204—OPINION

issue of guilt before the presentation of evidence and 
argument on the issue of punishment. Such a proce­
dure is required by the laws of California and of five 
other States.1" Petitioner Crampton, whose guilt and 
punishment were determined at a single trial, contends 
that a procedure like California’s is compelled by the 
Constitution as well.

This Court has twice had occasion to rule on separate 
penalty proceedings in the context of a capital case. In 
United States v. Jackson, 390 U. S. 570 (1068), we held 
unconstitutional the penalty provisions of the Federal 
Kidnaping Act, which we construed to mean that a de­
fendant demanding a jury trial risked the death penalty 
while one pleading guilty or agreeing to a bench trial 
faced a maximum punishment of life imprisonment. The 
Government had contended that in order to mitigate 
this discrimination we should adopt an alternative con­
struction, authorizing the trial judge accepting a guilty 
plea or jury waiver to convene a special penalty jury 
empowered to recommend the death sentence. Id., at 
572. Our rejection of this contention was not based 
solely on the fact that it appeared to run counter to the 
language and legislative history of the Act. “ [Ejven on 
the assumption that the failure of Congress to [provide 
for the convening of a penalty jury] was wholly inad­
vertent, it would hardly be the province of the courts to 
fashion a remedy. Any attempt to do so would be fraught 
with the gravest difficulties . . . .” Id., at 578-579.

McGAUTHA v. CALIFORNIA 25-

10 Cal. Penal Code § 190.1 (West Supp. 1970); Conn. Gen. Stat- 
Rev. § 53a-46 (Supp. 1967); Act of Mar. 27, 1970, No. 1.33.'!, Ga. 
Laws 1970, p. 949; N. Y. Penal Law §§ 125,30, 125.35 (McKinney 
1967); Pa. Stat. Ann. Tit. IS, §4701 (1963); Tex. Code Crim. Proc. 
Art. 3707 (2) (b) (Supp. 1970). See also ALI, Model Penal Code 
§210.6(2) (Proposed Official Draft 1962); National Commission 
on Reform of Federal Criminal Laws, Final Report, provisional 
§ 3602 (1971); Report of the Royal Commission on Capital Punish­
ment, 1949-1953, Cmd. 8932, Iff 551-595 (1953).



203 *  204—OPINION

Wo therefore declined “ to create from whole cloth a com­
plex and completely novel procedure and to thrust it 
upon unwilling defendants for the sole purpose of rescu­
ing a statute from a charge of unconstitutionality.” Id., 
at 580. Jackson, however, did not consider the possibility 
that such a procedure might be constitutionally required 
in capital cases.

Substantially this result had been sought by the peti­
tioner in Spencer v. Texas, 3S5 U. S. 554 (1967). Like 
Crampton, Spencer had been tried in a unitary proceed­
ing before a jury which fixed punishment at death. Also 
like Crampton, Spencer contended that the Due Process 
Clause of the Fourteenth Amendment required a bifur­
cated trial so that evidence relevant solely to the issue 
of punishment would not prejudice his case on guilt. We 
rejected this contention, in the following language:

“To say that the two-stage jury trial in the English- 
Connecticut style is probably the fairest, as some 
commentators and courts have suggested, and with 
which we might well agree were the matter before 
us in a legislative or rule-making context, is a far 
cry from a constitutional determination that this 
method of handling the problem is compelled by tire 
Fourteenth Amendment. Two-part jury trials are 
rare in our jurisprudence; they have never been 
compelled by this Court as a matter of constitutional 
law, or even as a matter of federal procedure. With 
recidivism the major problem that it is, substantial 
changes in trial procedure in countless local courts 
around the country would be required were this 
Court to sustain the contentions made by these pe­
titioners. This we are unwilling to do. To take 
such a step would be quite beyond the pale of this 
Court’s proper function in our federal system.” Id.„ 
at 567-568 (footnotes omitted).

20 McGAUTHA v. CALIFORNIA



McGAUTHA v. CALIFORNIA

Spencer considered the bifurcation issue in connection 
with the State’s introduction of evidence of prior crimes; 
we now consider the issue in connection with a de­
fendant's choice whether to testify in his own behalf. 
But even though this case cannot be said to be controlled 
by Spencer, our opinion there provides a significant guide 
to decision here.

A
Crampton’s argument for bifurcation runs as follows. 

Under Malloy v. Hogan, 378 U. S. 1 (1964), and Griffin 
v. California, 380 U. S. 609 (1965), he enjoyed a con­
stitutional right not to be compelled to be a witness 
against himself. Yet under the Ohio single-trial pro­
cedure, he could remain silent on the issue of guilt only 
at the cost of surrendering any chance to plead his case 
on the issue of punishment. He contends that under 
the Due Process Clause of the Fourteenth Amendment, 
as elaborated in, e. g., Townsend v. Burke, 334 U. S. 
736 (1948); Specht v. Patterson, 386 U. S. 605 (1067); 
and Mempa v. Rhay, 389 I”. S. 12S (1967), he had a 
right to be heard on the issue of punishment and a 
right not to have his sentence fixed without the benefit 
of all the relevant evidence. Therefore, he argues, the 
Ohio procedure possesses the flaw we condemned in Sim­
mons v. United States, 390 U. S. 377, 394 (1968); it 
creates an intolerable tension between constitutional 
rights. Since this tension can be largely avoided by a 
bifurcated trial, petitioner contends that there is no le­
gitimate state interest in putting him to the election,, 
and that the single-verdict trial should be held invalid 
in capital cases.

Simmons, however, dealt with a very different situation 
from the one which confronted petitioner Crampton, and 
not everything said in that opinion can be carried over

27



203 & 204—OPINION

to tliis case without circumspection. In Simmons we held 
it unconstitutional for the Federal Government to use at 
trial the defendant’s testimony given on an unsuccessful 
motion to suppress evidence allegedly seized in violation 
of the Fourth Amendment. We concluded that to per­
mit such use created an unacceptable risk of deterring the 
prosecution of marginal Fourth Amendment claims, thus 
weakening the efficacy of the exclusionary rule as a sanc­
tion for unlawful police behavior. This was surely an 
analytically sufficient basis for decision. However, we 
went on to observe that the penalty thus imposed on the 
good-faith assertion of Fourth Amendment rights was 
“ of a kind to which this Court has always been peculiarly 
sensitive,” 390 U. S., at 393, for it involved the incrimina­
tion of the defendant out of his own mouth.

A e found it not a little difficult to support this invoca­
tion of the Fifth Amendment privilege. We recognized 
that “ [a]s an abstract matter” the testimony might be 
voluntary, and that testimony to secure a benefit from 
the Government is not ipso facto “compelled” within the 
meaning of the Self-Incrimination Clause. The distin­
guishing feature in Simmons’ case, we said, was that “ the 
‘benefit’ to be gained is that afforded by another pro­
vision of the Bill of Bights.” Id., at 393-394. Thus the 
only real basis for holding that Fifth Amendment policies 
were involved was the colorable Fourth Amendment 
claim with which we had begun.

The insubstantiality of the purely Fifth Amendment 
interests involved in Simmons was illustrated last Term 
by the trilogy of cases involving guilty pleas. Brady v. 
United States, 397 U. S. 742 (1970); McMann v. Richard­
son, 397 U. S. 759 (1970); Parker v. North Carolina, 397 
U. S. 790 (1970). While in Simmons we relieved the 
defendant of his “waiver” of Fifth Amendment rights 
made in order to obtain a benefit to which he was ulti­
mately found not constitutionally entitled, in the trilogy

28 McGAUTHA v. CALIFORNIA



203 & 204— OPINION

we held the defendants bound by “waivers” of rights un­
der the Fifth, Sixth, and Fourteenth Amendments made 
in order to avoid burdens which, it was ultimately deter­
mined, could not constitutionally have been imposed. In 
terms solely of Fifth Amendment policies, it is apparent 
that Simmons had a far weaker claim to be relieved of his 
ill-advised “waiver” than did the defendants in the guilty- 
plea trilogy. While we have no occasion to question 
the soundness of the result in Simmons and do not do 
so. to the extent that its rationale was based on a “ ten­
sion” between constitutional rights and the policies be­
hind them, the validity of that reasoning must now be 
regarded as open to question, and it certainly cannot bo 
given the broad thrust which is attributed to it by 
Crampton in the present case.

The criminal process, like the rest of the legal system, 
is replete with situations requiring “ the making of dif­
ficult judgments” as to which course to follow. McMann 
v. Richardson, 397 U. S. 759, 769 (1970). Although a 
defendant may have a right, even of constitutional di­
mensions, to follow whichever course he chooses, the 
Constitution does not by that token always forbid re­
quiring him to choose. The threshold question is 
whether compelling the election impairs to an appreciable 
extent any of the policies behind the rights involved. 
Analysis of this case in such terms leads to the conclusion 
that petitioner has failed to make out his claim of a con­
stitutional violation in requiring him to undergo a unitary 
trial.

B
\\ e turn first to the privilege against compelled self­

incrimination. The contention is that where guilt and 
punishment are to be determined by a jury at a single 
trial the desire to address the jury on punishment unduly 
encourages waiver of the defendant’s privilege to remain

McGAUTHA v. CALIFORNIA 29'



203 ^ 204—OPINION

silent on the issue of guilt, or, to put the matter another 
way, that the single-verdict procedure unlawfully compels 
the defendant to become a witness against himself on 
the issue of guilt by the threat of sentencing him to death 
without having heard from him. It is not contended, 
nor could it be successfully, that the mere force of evi­
dence is compulsion of the sort forbidden by the privilege. 
See Williams v. Florida, 390 U. S. 78, 83-85 (1970). 
It does no violence to the privilege that a person’s 
choice to testify in his own behalf may open the door to 
otherwise inadmissible evidence which is damaging to his 
case. See Spencer v. Texas, 385 U. S. 554, 561 and n. 7 
(1967); cf. Michelson v. United States, 335 U. S. 469 
(1948). The narrow question left open is whether it 
is consistent with the privilege for the State to provide 
no means whereby a defendant wishing to present evi­
dence or testimony on the issue of punishment may limit 
the force of his evidence (and the State’s rebuttal) to 
that issue. We see nothing in the history, policies, or 
precedents relating to the privilege which requires such 
means to be available.

So far as the history of the privilege is concerned, it 
suffices to say that it sheds no light whatever on the 
subject, unless indeed that which is adverse, resulting 
from the contrast between the dilemma of which peti­
tioner complains and the historical excesses which gave 
rise to the privilege. See generally 8 J. Wigmore, Evi­
dence §2250 (McNaugton rev. ed. 1961); L. Levy, Ori­
gins of the Fifth Amendment (1968). Inasmuch as at 
the time of framing of the Fifth Amendment and for 
many years thereafter the accused in criminal cases was 
not allowed to testify in his own behalf, nothing ap­
proaching Crampton’s dilemma could arise.

The policies of the privilege likewise are remote sup­
port for the proposition that defendants should be per­
mitted to limit the effects of their evidence to the issue

30 McGAUTHA v. CALIFORNIA



203 & 204—OPINION

of punishment. rl'lio policies behind the privilege are 
varied, and not all are implicated in any given application 
of the privilege. See Murphy v. Waterfront Commission, 
378 U. S. 52. 55 (1964); see generally 8 J. Wigmore, 
supra, § 2251, and sources cited therein, n. 2. It can 
safely be said, however, that to the extent these policies 
provide any guide to decision, see McKay, Book Review, 
35 X. Y. lb L. Rev. 1097, 1100-1101 (1960), the only 
one affected to any appreciable degree is that of “cruelty.”

It is undeniably hard to require a defendant on trial 
for his life and desirous of testifying on the issue of 
punishment to make nice calculations of the effect of his 
testimony on the jury’s determination of guilt. The 
issue of cruelty thus arising, however, is less closely akin 
to “ the cruel trilemma of self-accusation, perjury or 
contempt,” Murphy v. Waterfront Commission, 378 U. S., 
at 55, than to the fundamental requirements of fairness 
and decency embodied in the Due Process Clauses. 
Whichever label is preferred, appraising such considera­
tions is inevitably a matter of judgment as to which 
individuals may differ; however, a guide to decision is 
furnished by the clear validity of analogous choices with 
which criminal defendants and their attorneys are quite 
routinely faced.

It has long been held that a defendant who takes the 
stand in his own behalf cannot then claim the privilege 
against cross-examination on matters reasonably related 
to the subject matter of his direct examination. See, 
e. cj.. Brown v. Walker, 161 U. S. 591, 597-598 (1896); 
Fitzpatrick v. United States, 178 U. S. 304, 314—31<> 
(1900); Brown v. United States, 356 Y. S. 148 (1958). 
It is not thought overly harsh in such situations to re­
quire that the determination whether to waive the privi­
lege take into account the matters which may be brought 
out on cross-examination. It is also generally recognized 
that a defendant who takes the stand in his own behalf

McGAUTHA v. CALIFORNIA 31



203 & 204—OPINION

may be impeached by proof of prior convictions or the 
like. See Spencer v. Texas, 385 U. S. 554, 5G1 (1067) ; 
cf. Michelson v. United States, 335 U. S. 409 (1948); 
but cf. Luck v. United States, 348 F. 2d 763 (CADC 
1065); Palumbo v. United States, 401 F. 2d 270 (CA2 
1068). Again, it is not thought inconsistent with the 
enlightened administration of criminal justice to require 
the defendant to weigh such pros and cons in deciding 
whether to testify.

Further, a defendant whose motion for acquittal at 
the close of the Government’s case is denied must decide 
whether to stand on his motion or put on a defense, 
with the risk that in so doing he will bolster the Gov­
ernment case enough for it to support a verdict of guilty. 
E. g., United States v. Calderon, 348 U. S. 160, 164 and 
n. 1 (1054); 2 C. Wright, Federal Practice and Procedure 
S 463 (1969); cf. ABA Project on Minimum Standards 
for Criminal Justice: Trial by Jury 107-10S (Tent. 
Draft, 1968). But see Comment, The Motion for Ac­
quittal: A Neglected Safeguard, 70 Yale L. J. 1151 
(1061); cf. Cephas v. United States, 324 F. 2d 803 (CADC' 
1963). Finally, only last Term in Williams v. Florida, 
309 D. S. 7S (1070) , we had occasion to consider a Florida 
“notice-of-alibi” rule which put the petitioner in that 
case to the choice of either abandoning his alibi defense 
or giving the State both an opportunity to prepare a 
rebuttal and leads from which to start. We rejected the 
contention that the rule unconstitutionally compelled 
the defendant to incriminate himself. The pressures 
which might lead the defendant to furnish this arguably 
“ testimonial” and “ incriminating” information arose 
simply from

“the force of historical fact beyond both his and the 
State’s control and the strength of the State’s case 
built on these facts. Response to that kind of pres­
sure by offering evidence or testimony is not com-

32 McGAUTHA v. CALIFORNIA



203 & 204—OPINION

polled self-incrimination transgressing the Fifth and
Fourteenth Amendments.” Id., at 85.
e are thus constrained to reject the suggestion that a 

desire to speak to one’s sentencer unlawfully compels a 
defendant in a single-verdict capital case to incriminate 
himself, unless there is something which serves to dis­
tinguish sentencing—or at least capital sentencing—from 
the situations given above. Such a distinguishing factor 
can only be the peculiar poignancy of the position of a 
man whose life is at stake, coupled with the imponder­
ables of the decision which the jury is called upon to 
make. We do not think that the fact that a defendant’s 
sentence, rather than his guilt, is at issue creates a con­
stitutionally sufficient difference from the sorts of situa­
tions we have described. While we recognize the truth 
of Mr. Justice Frankfurter’s insight in Green v. United 
States, 365 U. S. 301, 304 (1961) (plurality opinion), 
as to the peculiar immediacy of a personal plea by the 
defendant for leniency in sentencing, it is also true that 
the testimony of an accused denying the case against him 
has considerably more force than counsel’s argument that 
the prosecution’s case has not been proven. The relevant 
differences between sentencing and determination of guilt 
or innocence are not so great as to call for a differ­
ence in constitutional result. Nor does the fact that 
capital, as opposed to any other, sentencing is in issue 
seem to us to distinguish this case. See Williams v. New 
York, 337 U. S. 241, 251-252 (1949). Even in non­
capital sentencing the sciences of penology, sociology, and 
psychology have not advanced to the point that sentenc­
ing is v holly a matter of scientific calculation from objec­
tively verifiable facts.

W e conclude that the policies of the privilege against 
compelled self-incrimination are not offended when a 
defendant in a capital case yields to the pressure to 
testify on the issue of punishment at the risk of dam­

McGAUTHA v. CALIFORNIA 33



203 & 204—OPINION

aging his case on guilt. We therefore turn to the con­
verse situation, in which a defendant remains silent on 
the issue of guilt and thereby loses any opportunity to 
address the jury personally on punishment.

C
It is important to identify with particularity the inter­

ests which are involved. Petitioner speaks broadly of a 
right of allocution. This right, of immemorial origin, 
arose in a context very different from that which con­
fronted petitioner Crampton.20 See generally Barrett, 
Allocution (pts. 1-2), 9 Mo. L. Hev. 115, 232 (1944). It 
has been preserved in its original form in Ohio and in 
many other States.21 What petitioner seeks, to be sure 
for purposes not wholly unrelated to those served by the 
right of allocution in former times, see Green v. United 
Slates, 365 U. S. 301, 304 (1961) (opinion of Frankfurter, 
J.), is nevertheless a very different procedure occurring in 
a radically different framework of criminal justice.

Leaving aside the term “allocution,” it also appears 
that petitioner is not claiming the right simply to be 
heard on the issue of punishment. This Court has not 
directly determined whether or to what extent the con­
cept of due process of law requires that a criminal de­
fendant wishing to present evidence or argument pre-

34 McGAUTHA v. CALIFORNIA

20 For instance, the accused was not permitted to have the assist­
ance of counsel, was not permitted to testify in his own behalf, was 
not entitled to put on evidence in his behalf, and had almost no­
possibility of review of his conviction. See, e. g.. G. Williams, The 
Proof of Guilt 4-12 (3d ed., 1963); 1 .T. Stephen, A History of the- 
Criminal Law of England 308-311. 350 (1883).

-'O h io Rev. Code Ann. §2947.05 (Page 1954) provides:
‘ ‘Before sentence is pronounced, the defendant must be informed 
by the court of the verdict of the jury, or the finding of the court, 
and asked whether he has anything to say as to why judgment should 
not be pronounced against him.”



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NOIXIdO—tos y  80S



203 & 204— OPINION

judges, as one would expect, take a lenient view of thu 
admissibility of evidence offered by a defendant on trial 
for his life. As the present case illustrates, an accused 
can put before the jury a great deal of background evi­
dence with at best a tenuous connection to the issue of 
guilt. The record in Crampton’s case does not reveal 
that any evidence offered on the part of the defendant 
was excluded on the ground that it was relevant solely 
to the issue of punishment.

On the other hand, petitioner is not seeking vindica­
tion for his interest in making a personal plea for mercy.23 
Even in a bifurcated trial, the defendant could be re­
stricted to the giving of evidence, with argument to be 
made by counsel only. Petitioner’s contention therefore 
comes down to the fact that the Ohio single-verdict trial 
may deter the defendant from bringing to the jury’s 
attention evidence peculiarly within his own knowledge, 
and it may mean that the death verdict will be returned 
by a jury which never heard the sound of his voice. We 
do not think that the possibility of the former is suffi­
ciently great to sustain petitioner’s claim that the single­
verdict trial may deprive the jury of a rational basis for 
fixing sentence. Assuming that in this case there was 
relevant information solely within petitioner’s knowl­
edge, we do not think the Constitution forbids a require­
ment that such evidence be available to the jury on all 
issues to which it is relevant or not at all. As to the 
largely symbolic value represented by the latter interest,

30 McGAUTHA v. CALIFORNIA

23 It may be noted in passing that petitioner at no point requested 
an opportunity to address the jury personally on the issue of punish­
ment. Compare the Georgia practice of permitting the defendant 
to make an unsworn statement on which he is not subject to cross- 
examination, and the deprecating view of this opportunity taken by 
those familiar with it, all discussed in Ferguson v. Georgia, 365 U. S. 
570 (1961).



203 A- 204—OPINION

Ohio has provided for retention of the ritual of allocu­
tion, albeit only in its common-law form, precisely to 
avoid the possibility that a person might be tried, con­
victed, and sentenced to death in complete silence. We 
have held that failure to ensure such personal participa­
tion in the criminal process is not necessarily a constitu­
tional flaw in the conviction. Hill v. United States, 368 
U. S. 424 (1962). We do not think that Ohio was re- 
quired to provide an opportunity for petitioner to speak 
to the jury free from any adverse consequences on the 
issue of guilt. \\ e therefore reject this branch of peti­
tioner’s argument as well.

McGAUTHA v. CALIFORNIA 37

V
Before we conclude this opinion, it is appropriate for 

us to make a broader observation than the issues raised by 
these cases strictly call for. It may well be, as the Amer­
ican Law Institute and the National Commission on 
Reform of Federal Criminal Laws have concluded, that 
bifurcated trials and criteria for jury sentencing discretion 
are superior means of dealing with capital cases if the 
death penalty is to be retained at all. But the Federal 
Constitution, which marks the limits of our authority in 
these cases, does not guarantee trial procedures that arc 
the best of all worlds, or that accord with the most en­
lightened ideas of students of the infant science of crim­
inology, or even those that measure up to the individual 
predilections of members of this Court. See Spencer v. 
Texas, 385 U. S. 554 (1967). The Constitution requires 
no more than that trials be fairly conducted and that 
guaranteed rights of defendants be scrupulously respected. 
From a constitutional standpoint we cannot conclude 
that it is impermissible for a State to consider that the 
compassionate purposes of jury sentencing in capital cases 
are better served by having the issues of guilt and punish-



203 & 204—OPINION

meat determined in a single trial than by focusing the 
jury’s attention solely on punishment after the issue of 
guilt has been determined.

Certainly the facts of these gruesome murders bespeak 
no miscarriage of justice. The ability of juries, unas­
sisted by standards, to distinguish between those defend­
ants for whom the death penalty is appropriate punish­
ment and those for whom imprisonment is sufficient is 
indeed illustrated by the discriminating verdict of the 
jury in McGautha's case, finding Wilkinson the less 
culpable of the two defendants and sparing his life.

The procedures which petitioners challenge are those by 
which most capital trials in this country are conducted, 
and by which all were conducted until a few years ago. 
We have determined that these procedures are consistent 
with the rights to which petitioners were constitutionally 
entitled, and that their trials were entirely fair. Having 
reached these conclusions we have performed our task of 
measuring the States' process by federal constitutional 
standards, and accordingly the judgment in each of these 
cases is

Affirmed_

38 McGAUTIIA v. CALIFORNIA



APPENDIX

Model Penal Code §210.6 (Proposed Official Draft. 
1962):

(1) Death Sentence Excluded. When a defendant is 
found guilty of murder, the Court shall impose sentence 
for a felony of the first degree if it is satisfied that:

(a ) none of the aggravating circumstances enumerated 
in Subsection (3) of this Section was established by the 
evidence at the trial or will be established if further 
proceedings are initiated under Subsection (2) of this 
Section; or

(b) substantial mitigating circumstances, established 
by the evidence at the trial, call for leniency; or

(c) the defendant, with the consent of the prosecuting 
attorney and the approval of the Court, pleaded guilty 
to murder as a felony of the first degree; or

(d) the defendant was under 18 years of age at the 
time of the commission of the crime; or

(e) the defendant’s physical or mental condition calls 
for leniency; or

(f ) although the evidence suffices to sustain the ver­
dict, it does not foreclose all doubt respecting the defend­
ant’s guilt.

(2) Determination by Court or by Court and .Jury. 
Unless the Court imposes sentence under Subsection (1) 
of this Section, it shall conduct a separate proceeding 
to determine whether the defendant should be sentenced 
for a felony of the first degree or sentenced to death. The 
proceeding shall be conducted before the Court alone 
if the defendant was convicted by a Court sitting without 
a jury or upon his plea of guilty or if the prosecuting 
attorney and the defendant waive a jury with respect to 
sentence. In other cases it shall be conducted before 
the Court sitting with the jury which determined the

39



20.'! & 204— OPINION

defendant’s guilt or, if the Court for good cause shown 
discharges that jury, with a new jury empanelled for 
the purpose.

In the proceeding, evidence may be presented as to 
any matter that the Court deems relevant to sentence, 
including but not limited to the nature and circumstances 
of the crime, the defendant’s character, background, his­
tory, mental and physical condition and any of the aggra­
vating or mitigating circumstances enumerated in Sub­
sections (3) and (4) of this Section. Any such evidence, 
not legally privileged, which the court deems to have 
probative force, may be received, regardless of its admis­
sibility under the exclusionary rules of evidence, provided 
that the defendant’s counsel is accorded a fair oppor­
tunity to rebut such evidence. The prosecuting attorney 
and the defendant or his counsel shall be permitted to 
present argument for or against sentence of death.

The determination whether sentence of death shall be 
imposed shall be in the discretion of the Court, except 
that when the proceeding is conducted before the Court 
sitting with a jury, the Court shall not impose sentence 
of death unless it submits to the jury the issue whether 
the defendant should be sentenced to death or to im­
prisonment and the jury returns a verdict that the sen­
tence should be death. If the jury is unable to reach 
a unanimous verdict, the Court shall dismiss the jury 
and impose sentence for a felony of the first degree.

The Court, in exercising its discretion as to sentence, 
and the jury, in determining upon its verdict, shall take 
into account the aggravating and mitigating circum­
stances enumerated in Subsections (3) and (4) and any 
other facts that it deems relevant, but it shall not impose 
or recommend sentence of death unless it finds one of the 
aggravating circumstances enumerated in Subsection (3) 
and further finds that there are no mitigating circum­

40 McGAUTHA v. CALIFORNIA



203 <fc 204—OPINION

stances sufficiently substantial to call for leniency. When 
the issue is submitted to the jury, the Court shall so 
instruct and also shall inform the jury of the nature of 
the sentence of imprisonment that may be imposed, in­
cluding its implication with respect to possible release 
upon parole, if the jury verdict is against sentence of 
death.

[Alternative version of Subsection (2), providing for 
determination of sentence by the Court in all cases, 
omitted.]

(3) Aggravating Circumstances.
(a) The murder was committed by a convict under 

sentence of imprisonment.
(b) The defendant was previously convicted of an­

other murder or of a felony involving the use or threat 
of violence to the person.

(c) At the time the murder was committed the de­
fendant also committed another murder.

(d) The defendant knowingly created a great risk of 
death to many persons.

(e) The murder was committed while the defendant 
Avas engaged or was an accomplice to the commission of, 
or an attempt to commit, or flight after committing or 
attempting to commit robbery, rape or deviate sexual 
intercourse by force or threat of force, arson, burglary 
or kidnapping.

(f) The murder was committed for the purpose of 
•avoiding or preventing a lawful arrest or effecting an 
escape from lawful custody.

(g) The murder was committed for pecuniary gain.
(h) The murder was especially heinous, atrocious or 

cruel, manifesting exceptional depravity.
(4) Mitigating Circumstances.
fa) The defendant has no significant history of prior 

criminal activity.

-McGAUTHA v. CALIFORNIA 41



«

42

203 & 204— OPINION 

McGAUTHA v. CALIFORNIA

(b) The murder was committed while the defendant 
was under the influence of extreme mental or emotional 
disturbance.

(c) The victim was a participant in the defendant’s 
homicidal conduct or consented to the homicidal act.

(d) The murder was committed under circumstances 
which the defendant believed to provide a moral justifi­
cation or extenuation for his conduct.

(e) The defendant was an accomplice in a murder com­
mitted by another person and his participation in the 
homicidal act was relatively minor.

(f) The defendant acted under duress or under the 
domination of another person.

(g) At the time of the murder, the capacity of the 
defendant to appreciate the criminality [wrongfulness] 
of his conduct or to conform his conduct to the require­
ments of law was impaired as a result of mental disease 
or defect or intoxication.

(h) The youth of the defendant at the time of the 
crime.

■■