American University Law Review

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April, 1997

MONTANA v. EGELHOFF: VOLUNTARY INTOXICATION, MORALITY, AND THE CONSTITUTION

ROBERT J. MCMANUS*

INTRODUCTION

Alcoholic intoxication is a problem with which American society has been grappling for more than a century. It is estimated that nearly 111 million Americans drink alcohol.¹ Given the prevalence of alcohol use and its connections with crime and violence,² it is not surprising that the legal system constantly struggles with the issues raised by intoxication. The most heated debate among legal scholars concerns the relevance of intoxication to the mens rea elements in criminal offenses.³ Legislatures and courts have debated the validity and necessity of allowing defendants to submit to juries the defense that alcohol prevented the defendant from possessing the required mental elements of the offense charged.⁴

A corollary to this debate is the repeated allusion by the U.S. Supreme Court to the right of a defendant to present a defense in a criminal trial under the Due Process Clause of the Fourteenth Amendment, as established in Chambers v. Mississippi.⁵ In Montana v. Egelhoff,⁶ the Court addressed what role this right played in the controversy surrounding the relevancy of voluntary intoxication to considerations of mens rea. In Egelhoff, the Court confronted a due process challenge to a Montana law forbidding consideration of intoxication evidence in homicide offenses.⁷ In a 5-4 decision, the Court refused to rule that this evidentiary restriction was a due process violation.⁸ Although the Court acknowledged the existence of the right to present a defense, it held that the combination of the deference accorded to states in instituting their criminal justice systems and the long common-law tradition of excluding intoxication evidence justified the restriction.⁹

Egelhoff's effect on the right to present a defense doctrine is unclear. Because the plurality appears to have been motivated by the moral nature of the alcohol issue, Egelhoff may prove to be a decision limited to its facts. Still, the role that Egelhoff plays in the emerging right to present a defense doctrine is worth examining and is the focus of this Note.

Part I of this Note discusses the genesis of the right to present a defense leading to Montana v. Egelhoff. Part II summarizes the factual and procedural background of the case, and Part III presents the Supreme Court's opinions. Part IV analyzes the Egelhoff decision and suggests that its effect on the right to present a defense will be limited. Finally, Part V offers recommendations on the role that Montana v. Egelhoff should play in the law.

I. HISTORY OF THE RIGHT TO PRESENT A DEFENSE¹⁰

A. Case Law Leading to Chambers v. Mississippi

In 1851 the Supreme Court first addressed the exclusion of a defendant's evidence in United States v. Reid.¹¹ Reid, like many of the Court's first examinations of exclusions, relied on evidentiary and procedural grounds instead of constitutional principles.¹² The most important of these first "evidentiary approach" cases was Crawford v. United States.¹³ By invalidating the exclusion of a letter supporting the defendant's defense in a conspiracy trial, the Court expressed a concern that the defendant receive a fair trial and that part of such assurance included allowing the defendant to present relevant evidence.¹⁴

The Court began to recognize a due process right to present a defense in the late 1800s and early 1900s. Beginning in the context of civil trials, the Court started to acknowledge a general right to be heard in defense and intimated that this right was fundamental.¹⁵ The first significant statement of these principles in a criminal case came with Cooke v. United States,¹⁶ and continued in In re Oliver.¹⁷ These cases, however, were minor steps toward constitutional protection for the right to present a defense because they involved the outright denial of hearings for defendants and were clear examples of due process violations.¹⁸

The important discussion of the right to a defense in situations in which the defendant's evidence was excluded only partially would not come until the late 1960s.¹⁹ Although confronted with numerous cases involving partial exclusions of evidence,²⁰ the Court did not contribute significantly to the development of the due process right to a defense in these situations²¹ until 1969 with Jenkins v. McKeithen.²² In Jenkins, the Court addressed a Louisiana statute creating the Louisiana Labor-Management Commission of Inquiry.²³ The Supreme Court held that the Commission functioned as a criminal enforcement body²⁴ and, as such, was subject to the requirements placed on states by the Due Process Clause of the Fourteenth Amendment.²⁵ Justice Marshall wrote in the majority opinion that these rights included "the right of a person investigated to present evidence on his own behalf."²⁶ Although Jenkins added significant weight to the concept of a right to a defense, the Court's opinion failed to explain the test for determining if an evidentiary exclusion violated this right.²⁷

The most significant development of the right to a defense doctrine occurred in the early 1970s. In Webb v. Texas,²⁸ the Court heard a case involving a claim that the defendant's due process rights were violated when the trial judge harassed and threatened the defendant's only witness to the point that the witness refused to testify.²⁹ The Court overturned the defendant's conviction on the grounds that the judge's actions violated the defendant's due process right to present a defense.³⁰ This decision was ground-breaking in the jurisprudence of the right to present a defense because the Court's reasoning relied on the Due Process Clause and not on the Compulsory Process Clause of the Sixth Amendment as had been the trend.³¹

Until 1970, the Court slowly had begun to craft the right to present a defense and, with Webb, had indicated that such a right was found in the Due Process Clause. In 1973, the Court took the final step in the genesis of this right when it heard Chambers v. Mississippi.³² Chambers was the cornerstone decision in the foundation of the due process right of a criminal defendant to present a defense.³³ The defendant in Chambers was convicted of murdering a police officer.³⁴ At issue was the application of Mississippi's voucher and hearsay rules, which led to the exclusion of important defense evidence.³⁵ The Court held 8-1 that these evidentiary exclusions violated the defendant's Due Process Clause rights,³⁶ which included "the right to a fair opportunity to defend against the State's accusations."³⁷ Justice Powell's "limitation clause," which stated that the holding in Chambers did nothing to create "new principles of constitutional law," tempered the seemingly unequivocal statement that Due Process Clause protections include the right to present a defense.³⁸ The significance of this statement still is debated in the courts,³⁹ but most judges and legal scholars agree that the Court in Chambers clearly based its holding on the due process right of a criminal defendant to present a defense.⁴⁰

B. The Right to Present a Defense After Chambers v. Mississippi

Since Chambers, the Supreme Court has continued to invoke the right to a defense under the Due Process Clause of the Fourteenth Amendment, and consequently, the right to a defense has become a fundamental principle of law.⁴¹ Substantial reliance on this right, however, has been sparse. The Court's first noteworthy use of the right to present a defense came in California v. Trombetta,⁴² in which the Court addressed whether states were required under the Due Process Clause to preserve potentially important evidence for a defendant.⁴³ Although a unanimous Court held that the Fourteenth Amendment did not require a state to save such evidence,⁴⁴ it was clear in recognizing the right of the defendant to present an adequate defense: "Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense."⁴⁵ This statement seems to equate the right to a defense, as defined in Chambers, with fundamental fairness, bolstering the right to present a defense doctrine and casting doubt on the validity of Justice Powell's "limitation clause" in Chambers.⁴⁶

The most substantial Supreme Court case to invoke the right to present a defense was Crane v. Kentucky.⁴⁷ In Crane the Court addressed the exclusion of testimony pertaining to the circumstances of the defendant's confession.⁴⁸ The Court, in what has amounted to the strongest statement ever by the Court of this doctrine, held that the exclusion denied Crane the "fundamental constitutional right to a fair opportunity to present a defense,"⁴⁹ as found in the Due Process Clause.⁵⁰ The evidentiary restriction could not be sustained because "competent, relevant evidence" can be excluded only if there is a valid state justification, which was not present in this case.⁵¹ In an apparent attempt to nullify the applicability of Justice Powell's "limitation clause" in Chambers, the Court wrote, "We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard."⁵² The opinion also indicated that the right to present a defense assured that the prosecutor's case was subjected to "adversarial testing."⁵³

A survey of Supreme Court cases since Chambers reveals that the right to present a defense has proved durable and gained widespread acceptance.⁵⁴ A survey of cases in the United States Circuit Courts reveals a similar endorsement.⁵⁵ For example, the Second Circuit in Williams v. Lord⁵⁶ adopted the right to present a defense doctrine when considering the exclusion of evidence.⁵⁷ In that case, the court was deciding whether the defendant, in support of her self-defense claim, had the right to introduce evidence that the victim had a history of violent activity.⁵⁸ The defendant maintained that her constitutionally protected right to present a defense mandated the admission of the evidence.⁵⁹ The court acknowledged that the right to present a defense was rooted in the Due Process Clause of the Fourteenth Amendment.⁶⁰ Furthermore, the court determined that the proper test for addressing this right was that applied in Rock v. Arkansas: whether the interests in applying the evidentiary rule justified the limitations on the right to present a defense.⁶¹ Although the court concluded that the defendant's right to present a defense had not been violated,⁶² its opinion is indicative of how United States Courts of Appeal generally treat the right to present a defense.⁶³

In sum, these decisions lead to two concrete conclusions regarding the right to present a defense. First, courts acknowledge that the right to present a defense exists under the Due Process Clause of the Fourteenth Amendment. Second, the proper standard of inquiry is to examine the rationale behind the evidentiary exclusion and to determine if those reasons are substantial enough to justify an infringement on the defendant's right to present a defense. Important considerations in this standard of inquiry include the relevance and reliability of the evidence in question.⁶⁴

II. FACTUAL AND PROCEDURAL BACKGROUND OF

MONTANA V. EGELHOFF⁶⁵

A. Facts and Procedure at the Trial Level

In early July 1992, James Allen Egelhoff and a friend went mushroom picking in the Yaak region near Troy, Montana.⁶⁶ Egelhoff had no possessions with him except for clothing and a .38 caliber handgun.⁶⁷ They encountered Roberta Pavola and John Christianson, who also were picking mushrooms in the area, and the four became friendly.⁶⁸ On July 12, 1992, Egelhoff, Pavola, and Christianson sold the mushrooms, purchased beer, and went to a party in Troy.⁶⁹ The three drank at the party and then at bars until 9:00 p.m. when they left in Christianson's station wagon, with Christianson driving, Pavola in the front seat, and Egelhoff in the back seat.⁷⁰ At approximately 9:20 p.m., Christianson and Egelhoff were seen at a grocery store.⁷¹ Later that night, numerous drivers on Highway 2 reported seeing Christianson's station wagon driving erratically, repeatedly weaving between the road and a side ditch.⁷² Sometime after midnight, sheriff's officers responded to calls of a drunk driver on Highway 2 and found Christianson's car in a ditch on the side of the road. The officers found Christianson and Pavola dead from gunshot wounds to the head in the front seat and Egelhoff in the back seat, yelling obscenities.⁷³ Egelhoff's gun was found on the driver's side floorboard with four loaded rounds and two empty casings lying beside it.⁷⁴ The officers took Egelhoff into custody and brought him to a nearby hospital in Libby.⁷⁵ The officers charged Egelhoff with two counts of deliberate homicide, which provides that a defendant is guilty if he acts "knowingly" or "purposely" in causing the death of another human being.⁷⁶

At trial, Detective Gassett, who responded to the situation, testified that Egelhoff was "intoxicated, combative and cursing profusely" in the detective's presence.⁷⁷ For the five or six hours that Gassett was present at the scene, Egelhoff acted wildly and repeatedly needed to be restrained.⁷⁸ Despite Egelhoff's erratic behavior and a .36 blood alcohol content ("BAC"),⁷⁹ he was able to kick a camera out of the hand of a policeman.⁸⁰

At trial, Egelhoff maintained that he had little memory of the day's events.⁸¹ He remembered being at the party while it was still daylight and then later sitting on a hill with Christianson drinking Black Velvet.⁸² Egelhoff did not remember leaving the party, driving in Christianson's car, shooting the gun, or kicking the camera out of the officer's hand.⁸³ Egelhoff also did not recall asking the ambulance driver repeatedly, "Did you find him?"⁸⁴ Forensics testing revealed that there was gunshot residue on Egelhoff's hands.⁸⁵ The State's firearms examiner testified that the bullet that killed Christianson could have come from "thousands of guns with characteristics like Egelhoff's gun."⁸⁶

Egelhoff asserted at trial:

[B]ecause [I] was found unconscious and suffering from intoxication measured at .36 one hour after being brought to the hospital, [my] level of intoxication precluded [me] from having driven the car or undertaking the physical tasks necessary to have done what the prosecution claimed [I] had done.⁸⁷

Egelhoff claimed that he suffered from an alcohol-induced blackout which led to his inability to remember the events of that day.⁸⁸ Dr. Clyde Knecht, who examined Egelhoff at the hospital, testified that Egelhoff's behavior and .36 BAC supported the theory that Egelhoff had suffered a blackout at some point prior to his medical examination.⁸⁹

At the conclusion of the trial, the judge issued Jury Instruction No. 11, practically quoting Montana Code . 45-2-203:

A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the Defendant proves that he did not know that it was an intoxicating substance when he consumed the substance causing the condition.⁹⁰

The jury convicted Egelhoff of two counts of deliberate homicide.⁹¹

Egelhoff appealed to the Montana Supreme Court, raising four issues.⁹² The Montana Supreme Court confined its deliberations to the due process violation raised by Egelhoff.⁹³

B. Montana Supreme Court Opinion

Egelhoff argued that by keeping evidence of intoxication from the jury during its determination of his mental state, . 45-2-203 relieved the State of its burden to prove that Egelhoff had acted "knowingly" or "purposely," as required by the definition of deliberate homicide.⁹⁴ The State countered that Egelhoff's due process rights were not violated because he was able to use evidence of intoxication in other areas during the trial.⁹⁵ Furthermore, the State argued that there was no due process violation because the trial judge instructed the jury that the State had to prove every element of the crime beyond a reasonable doubt.⁹⁶ The Montana Supreme Court unanimously concluded that preventing consideration of evidence of intoxication when determining Egelhoff's mental state violated his due process rights, and the court found the statute unconstitutional.⁹⁷

The Montana Supreme Court was concerned largely with the burden of proof for the mental elements of "knowingly" or "purposely."⁹⁸ The court referred to the substantial amount of evidence submitted by the state to the jury when it argued that Egelhoff had knowingly or purposely shot Christianson and Pavola.⁹⁹ Instruction No. 11, however, which embodied . 45-2-203, prevented Egelhoff from rebutting the state's arguments with evidence of his intoxication.¹⁰⁰ The court concluded that this instruction reduced the state's burden of proof and denied Egelhoff due process.¹⁰¹

The court stated that under Chambers v. Mississippi,¹⁰² this fundamental due process right was "the right to a fair opportunity to defend against the State's accusations."¹⁰³ Specifically, the court was concerned with the burden of proof under this right. The court first cited In re Winship¹⁰⁴ for the constitutional requirement that the state prove, beyond a reasonable doubt, the elements of an offense. Second, the court cited Sandstrom v. Montana¹⁰⁵ for the premise that shifting the burden of proof of the mental element of a crime to the defendant was unconstitutional.¹⁰⁶

The court also cited dicta in Martin v. Ohio¹⁰⁷ to support its conclusions.¹⁰⁸ The defendant in Martin was convicted of murder despite a claim of self-defense.¹⁰⁹ The Supreme Court affirmed the decision, stating that it was not unconstitutional to shift the burden of proving self-defense to a defendant.¹¹⁰ In its discussion, the Court differentiated between a situation such as that in Martin, in which the defendant is required to put forward the evidence in support of her defense, and another in which a jury is ordered not to consider evidence relevant to determining whether the defendant is guilty.¹¹¹

The Montana Supreme Court, although noting that this discussion was not central to the Martin holding, indicated that it was responsive to the situation in Egelhoff.¹¹² Egelhoff was allowed to admit evidence relating to his intoxication, but . 45-2-203 prevented the jury from using the evidence to determine if he acted knowingly or purposely.¹¹³ "By allowing the jury to consider such evidence," wrote the court, "we permit the jury to make its decision on all of the relevant evidence as required under Martin."¹¹⁴

III. U.S. SUPREME COURT DECISION: MONTANA V. EGELHOFF

A. Plurality Opinion

The U.S. Supreme Court, in a 5-4 decision, overruled the Montana Supreme Court and held that Montana's exclusion of involuntary intoxication evidence when determining the mental status of a defendant was not a due process violation.¹¹⁵ The decision, written by Justice Scalia, assailed the Montana Supreme Court's assertion that the Due Process Clause guaranteed the right to introduce all relevant evidence.¹¹⁶ Justice Scalia emphasized that there are a number of evidentiary exclusions that have been found constitutional,¹¹⁷ in part due to the deference the Court accords states in administering their criminal justice systems.¹¹⁸ In light of this deference, the Court stated that the evidentiary restriction in Egelhoff should be analyzed under the test established in New York v. Patterson.¹¹⁹ The relevant language in Patterson indicates that the judgment of a state in administering its criminal justice system "is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'"¹²⁰ Thus, wrote Justice Scalia, Egelhoff had to show that the "right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a 'fundamental principle of justice.'"¹²¹

Justice Scalia analyzed the historical treatment of the relationship between voluntary intoxication and mental state.¹²² The Court noted that prior to the nineteenth century, it almost uniformly was held that evidence of intoxication could not be presented at trial.¹²³ In contrast, Egelhoff had argued that during the course of the nineteenth century, courts had accepted such evidence to show that a defendant did not possess the required mental state to be guilty of the crime.¹²⁴ The Court, however, gave great weight to the ten states (including Montana) that continue to adhere to the old common-law rule,¹²⁵ and stated that it was difficult to recognize the right to present intoxication evidence as fundamental when one-fifth of the states practiced otherwise.¹²⁶

The Court attempted to defend the application of the old common-law rule by offering various justifications.¹²⁷ The first was that excluding evidence of intoxication deters the commission of other crimes while intoxicated.¹²⁸ Second, the Court stated that such rules codify the moral culpability of crimes committed while intoxicated.¹²⁹ A third justification was to avoid confusing juries

with misleading evidence.¹³⁰ The Court concluded that although many states recognized the relevance of intoxication to mens rea, the rule permitting intoxication evidence on the question of mens rea was of "too recent vintage, and has not received sufficiently uniform and permanent allegiance to qualify as fundamental, especially since it displaces a lengthy common-law tradition which remains supported by valid justifications today."¹³¹

Justice Scalia then addressed the due process guarantees that the Montana Supreme Court cited in finding . 45-2-203 unconstitutional. The Court first dismissed the Montana Supreme Court's reliance on Chambers v. Mississippi.¹³² The plurality wrote that "Chambers was an exercise in highly case-specific error correction"¹³³ and made much of Justice Powell's limitation clause in Chambers that stated: "In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures."¹³⁴ Thus, to the majority, Chambers represented nothing more than the idea that faulty evidentiary rules, when viewed in their totality, can lead to a violation of the Due Process Clause.¹³⁵ The Court also rejected Egelhoff's argument that Crane v. Kentucky¹³⁶ represented the correct interpretation of Chambers.¹³⁷ Justice Scalia wrote that Crane stood for the notion that evidentiary restrictions are unconstitutional under the Chambers doctrine when there is no valid state justification, and that was not the case with . 45-2-203.¹³⁸

Addressing the Montana Supreme Court's use of In re Winship¹³⁹ and Sandstrom v. Montana,¹⁴⁰ the Court held these cases inapplicable because . 45-2-203 did not shift the burden of proof in proving an element of the offense.¹⁴¹ As the Montana Supreme Court opined, the statute did not shift the prosecution's burden, but did reduce it.¹⁴² Such a reduction, wrote the Court, never has been unconstitutional unless it violated "a fundamental principle of fairness;"¹⁴³ here it did not.¹⁴⁴

Finally, the Court made quick work of the Montana Supreme Court's reliance on Martin v. Ohio.¹⁴⁵ Justice Scalia stated that the Court must concern itself with its prior holdings and not dicta.¹⁴⁶ Because no decision of the Court had adopted the ideas reflected in the Martin dicta, they were, in Justice Scalia's opinion, irrelevant to the case at hand.¹⁴⁷

B. Justice Ginsburg's Concurrence

In a concurring opinion, Justice Ginsburg suggested that the constitutionality of . 45-2-203 turned on its characterization.¹⁴⁸ If . 45-2-203 was a bar to admitting relevant evidence, then it was a due process violation.¹⁴⁹ If it was a legislative redefinition of the mens rea element for deliberate homicide, then there was no constitutional infringement of Egelhoff's rights.¹⁵⁰ Ginsburg ultimately opined that although she did not feel . 45-2-203 was simply an evidentiary restriction, she would decline to rule . 45-2-203 unconstitutional.¹⁵¹

First, Justice Ginsburg pointed out that . 45-2-203 appears in Title 45 ("Crimes") and not Title 26 ("Rules of Evidence") of the Montana Code, indicating that it might not be a strictly evidentiary statute.¹⁵² Rather, . 45-2-203 represented the Legislatures' desire to remove voluntary intoxication from the inquiry into the mental state of a defendant.¹⁵³ As such, in proving the mental state of deliberate homicide, the State had to show that the defendant committed the murder purposely or knowingly, or "'under circumstances that would otherwise establish knowledge or purpose 'but for' [the defendant's] voluntary intoxication.'"¹⁵⁴ Thus, . 45-2-203 did not run afoul of In re Winship's requirement that the prosecution must prove every element of a crime beyond a reasonable doubt because the State's definition of the offense guided the inquiry.¹⁵⁵

Second, Justice Ginsburg reiterated that a state is accorded deference in defining the elements of its crimes, and that criminal statutes are unconstitutional only if they offend a fundamental principle of justice.¹⁵⁶ Restating the rationale of the plurality, Justice Ginsburg intimated that the common-law history of refusing to admit evidence of voluntary intoxication, combined with the "significant minority" of states that still employ the common-law doctrine, made . 45-2-203 constitutional.¹⁵⁷ Justice Ginsburg's concurrence accorded great deference to the other states that have adopted statutes similar to Montana's and reasoned that such laws, which already have been declared constitutional, should not be found otherwise by this case.¹⁵⁸ She concluded that . 45-2-203 suffered no "constitutional shoal."¹⁵⁹

C. Justice O'Conner's Dissent

Justices Stevens, Souter, and Breyer joined Justice O'Connor's vehement dissent arguing that . 45-2-203 violated the boundaries established in the right to present a defense doctrine.¹⁶⁰ Justice O'Connor attacked the plurality's assertion that . 45-2-203 fell within the ambit of other constitutional evidentiary restrictions and argued that none of the restrictions cited by the plurality led to a complete bar of relevant evidence, as did the Montana statute at issue.¹⁶¹ By excluding evidence that would allow the defendant to mitigate the prosecution's mental state argument, the state no longer had to prove beyond a reasonable doubt that Egelhoff had formed the required mens rea.¹⁶² As a result, . 45-2-203 constituted a due process violation.¹⁶³

In the first section of her dissent, Justice O'Connor dismantled the plurality's treatment of Court precedent as "fact-bound, irrelevant, and dicta."¹⁶⁴ Justice O'Connor traced Chambers and its progeny, concluding that those cases manifested the Court's belief that State evidentiary exclusions violate a defendant's right to present a defense if there are no valid justifications supporting them.¹⁶⁵ Importantly, Justice O'Connor dismissed the plurality's characterization of Chambers as "'case-specific error correction.'"¹⁶⁶ She argued that the plurality also ignored the warnings of Crane v. Kentucky,¹⁶⁷ that the prosecution's case must be fully tested through the presentation of relevant, reliable, contradictory evidence.¹⁶⁸ Justice O'Connor also cited Washington v. Texas¹⁶⁹ for the proposition that the Due Process Clause grants a defendant the right to call witnesses in his or her defense.¹⁷⁰ She wrote: "These cases, taken together, illuminate a simple principle: Due process demands that a criminal defendant be afforded a fair opportunity to defend against the State's accusations."¹⁷¹ Justice O'Connor asserted that . 45-2-203 kept relevant evidence out of the courtroom and thus denied Egelhoff "a fair opportunity" while easing the prosecution's burden of proof.¹⁷²

Justice O'Connor's dissent also addressed the applicability of the In re Winship doctrine. In re Winship established the standard that the prosecution in a criminal case must prove all elements of the crime "beyond a reasonable doubt."¹⁷³ According to the Montana Supreme Court, the state had to prove that Egelhoff had committed the murders "purposely or knowingly."¹⁷⁴ If a jury is to determine a subjective mental state, relevant evidence must be allowed to test the prosecution's case and to avoid creating the assumption that the defendant did in fact possess the statutory mental state.¹⁷⁵ In this way, the reasonable doubt mandate of In re Winship can be met. Additionally, Justice O'Connor asserted that the plurality's dismissal of the Montana Supreme Court's reliance on Martin v. Ohio¹⁷⁶ as dictum was incorrect.¹⁷⁷ Martin, which differentiated between allocating the burden of proof for a defense and the absolute bar of possibly exculpatory evidence, was an important reaffirmation of the doctrine forbidding the unjustified prohibition on relevant evidence.¹⁷⁸

According to Justice O'Connor, the Court misrepresented the holdings in these cases, ignored their warnings against untested prosecution, and instead relied on them for the notion that a state may bar relevant evidence with sufficient justification.¹⁷⁹ Justice O'Connor argued that the Court's justifications, morality, and deterrence, were nothing more than justifications for why Montana would create statutes such as . 45-2-203 that would increase the likelihood of successful prosecutions in cases involving intoxicated defendants.¹⁸⁰ As for the argument that such evidence confuses juries and leads to "false acquittals," the exception that Montana makes for allowing evidence of involuntary intoxication indicates that such evidence is considered relevant and not misleading.¹⁸¹ Justice O'Connor concluded that the sole justification for . 45-2-203 was to "keep from the jury's consideration a category of evidence that helps the defendant's case and weakens the government's case."¹⁸²

In the second section of her dissent, Justice O'Connor acknowledged the common law's disdain for allowing evidence of voluntary intoxication.¹⁸³ She maintained, however, that during the nineteenth century, a significant number of courts recognized that voluntary intoxication could prevent a defendant from forming the required mental state.¹⁸⁴ It was this premise that motivated the Montana Supreme Court to hold that the "[e]limination of a critical category of defense evidence precludes a defendant from effectively rebutting the mental-state element" and that this limitation on the adversarial process was a due process violation.¹⁸⁵ Justice O'Connor argued that the failure to acknowledge this significant shift in doctrine prevented the plurality from performing a complete "fundamental principle of justice" analysis.¹⁸⁶ Rather, the analysis must include the "'fundamental principle' that a defendant has the right to a fair opportunity to put forward his defense in adversarial testing."¹⁸⁷ Justice O'Connor asserted that the shift in common-law doctrine was a response to this burgeoning right, and that as such, . 45-2-203 was unconstitutional.¹⁸⁸

Finally, the third section of Justice O'Connor's dissent criticized Justice Ginsburg's contention that . 45-2-203 redefined the mental state required to convict a person for deliberate homicide.¹⁸⁹ The Montana Supreme Court was clear that obtaining a conviction for deliberate homicides required proof that the defendant "knowingly or purposely" committed the crime.¹⁹⁰ The court initially determined that evidence of voluntary intoxication was pertinent to the requisite mental state.¹⁹¹ The court then made it clear that part of the prosecution's burden in obtaining a conviction for deliberate homicide was to show that Egelhoff satisfied "the mental state element."¹⁹² Thus, according to Justice O'Connor, Justice Ginsburg's determination that . 45-2-203 was constitutional as a redefinition of a criminal offense was untenable given the Supreme Court's duty to accept the interpretation of Montana law from Montana's highest state court.¹⁹³

In sum, Justice O'Connor determined that the disallowance of evidence of voluntary intoxication in the past was not enough to justify such exclusions today.¹⁹⁴ Montana created the ban and kept relevant exculpatory evidence out of the jury's consideration in an attempt to improve its chances of successful prosecution.¹⁹⁵ Although the Court should grant states latitude in administering their criminal justice systems, "the Court must invalidate those rules that violate the requirements of due process"¹⁹⁶ under the right to present a defense; . 45-2-203 is one such rule.

D. Justice Souter's Dissent

The crux of Justice Souter's dissent is similar to that of Justice O'Connor's. He argued that although states are permitted to redefine the elements of a crime, no such redefinition had occurred here.¹⁹⁷ Assuming that no redefinition had occurred, Montana still could limit the use of evidence if justified by valid state interests.¹⁹⁸ Justice Souter conceded that the plurality made a convincing argument for the rejection of intoxication evidence at common law, but asserted that the inquiry must include an analysis under the right to present a defense.¹⁹⁹ The ability of states to limit relevant evidence justifiably tempers this right to present a defense.²⁰⁰ Justice Souter offered one possible justification, namely to prevent jury confusion.²⁰¹ Montana failed to assert this or any other justification for its actions, however, and . 45-2-203 therefore was found unconstitutional.²⁰²

Justice Souter also argued that Montana has achieved its desired end by redefining "knowingly" and "purposely" so as to exclude evidence of voluntary intoxication.²⁰³ Under the Court's decision in Patterson, the wide latitude granted a state in defining its criminal justice system would permit such a redefinition.²⁰⁴ As Justices O'Connor and Breyer noted in their dissents, however, it was impossible to read . 45-2-203 as having done so, given the decision of the Montana Supreme Court.²⁰⁵

E. Justice Breyer's Dissent

Justice Breyer wrote the third dissent in Montana v. Egelhoff. Considerably shorter than those of Justices O'Connor and Souter, Justice Breyer agreed with the other dissenters that . 45-2-203 could not be read as having redefined the mental element of deliberate homicide.²⁰⁶ He argued, however, that this was irrelevant to the constitutionality of the statute; even if . 45-2-203 had redefined the mental state, it still would be unconstitutional because "it turns guilt or innocence not upon state of mind, but upon irrelevant external circumstances."²⁰⁷ If it were the desire of the Montana Legislature to equate "knowingly or purposely" with voluntary intoxication, then it should have done so in a more deliberate manner.²⁰⁸ As written, Justice Breyer believed . 45-2-203 was a constitutional violation.²⁰⁹

IV. CRITICAL ANALYSIS OF MONTANA V. EGELHOFF

Given the substantial acknowledgment by the Court in prior cases of a due process right to present a defense,²¹⁰ it is odd that the Court avoided applying this right,²¹¹ and instead applied the "fundamental principle of justice" standard.²¹² The facts in Egelhoff certainly are similar, if not identical, to other cases in which the Court has analyzed an evidentiary exclusion by determining whether the rationale underlying the exclusion justifies curtailing a defendant's right to present a defense.²¹³ The Court's approach in Egelhoff is all the more questionable given that the evidentiary bar was absolute; prior to Egelhoff, the Supreme Court consistently had found complete bans on reliable and relevant evidence unconstitutional.²¹⁴

Justice Scalia attempted to limit the applicability of Chambers and the right to present a defense by characterizing the Chambers decision as "highly case-specific error correction."²¹⁵ Justice Scalia thus ascribed great import to Justice Powell's "limitation clause" in Chambers, which cautioned that the holding did not signal any new constitutional principles.²¹⁶ Egelhoff is the first case in the twenty-three years following Chambers in which the Court has seen fit to invoke the "limitation clause" to circumvent the import of Chambers.²¹⁷ The consistent rejection of the clause by the Supreme Court, as well as by the U.S. Circuit Courts,²¹⁸ makes Justice Scalia's characterization of Chambers suspect.

The Court accepted the existence of the right to present a defense. Although the Court may have attempted to downplay Chambers' importance by citing Justice Powell's statement, it could not ignore the constitutional right to present a defense. Justice Scalia explicitly stated that due process does afford protection against restrictions on "that right."²¹⁹ As the Court has acknowledged the right to present a defense and has used this right to invalidate evidentiary restrictions like that in Egelhoff, why did the Court avoid this simple way of affirming the Montana Supreme Court's decision? Why did the Court instead force Egelhoff to show that the narrow right to present evidence of voluntary intoxication on the issue of mens rea was "so rooted in traditions and the consciences of our people as to be ranked fundamental?"²²⁰ There are two reasons, both unavoidably intertwined: morality and Justice Scalia.²²¹

Justice Scalia has made it clear that his approach to fundamental right inquiries under the Due Process Clause requires that the right be "historically and traditionally protected."²²² He also has made it clear that the right examined should be narrowly defined, stating, "We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."²²³ The combination of Justice Scalia's two requirements assures that this "test" will not provide any constraints on the judiciary²²⁴ and will allow courts to pass moral judgments on constitutional issues.²²⁵

Justice Scalia first requires that the right be traditionally protected. If the judge defines the relevant tradition, then there is little to prevent "personal and private notions" from dictating how that tradition is defined.²²⁶ It then is very likely that the jurist will allow his or her personal morality to influence how to define the tradition.²²⁷ This is especially dangerous because Justice Scalia's approach relies solely on tradition in determining whether a right exists.²²⁸ This is in sharp contrast to other approaches that recognize the relevance of tradition but do not make it the sole criterion.²²⁹ Because a jurist's definition of tradition depends largely on personal and private notions, Justice Scalia's exclusive focus on tradition ensures that his approach will serve as an illusory limitation on the judiciary.²³⁰

Justice Scalia's choice of generality in defining the right to be examined further illustrates the pretextual nature of his test. It is virtually impossible for a justice sitting today to define accurately or to understand the traditions of another era.²³¹ Additionally, it is highly likely that jurists attempting to reconstruct the past will be shaded by "their own world view."²³² There is an inherent danger then in basing a constitutional test in tradition because of the high risk that the judge will characterize that right incorrectly. This risk is increased by requiring a narrow definition of tradition because broader principles most assuredly are easier to identify and apply.²³³

An examination of Justice Scalia's opinion in Michael H. v. Gerald D.²³⁴ is illustrative. There the Court addressed the claim that due process protected an interest in the relationship between a father and child.²³⁵ Justice Scalia required Michael H. to show that the interest in a parental relationship was "so rooted in the traditions and conscience of our people as to be ranked as fundamental."²³⁶ More importantly, Justice Scalia narrowed the asserted right to that between an adulterous father and his illegitimate child.²³⁷ Relying on a common-law tradition that protected father-child relationships but did not provide specifically the same protection for adulterous fathers and their children, the plurality rejected Michael H.'s claim.²³⁸

In a strong dissent, Justice Brennan assailed Justice Scalia's analytical approach.²³⁹ First, Justice Brennan labeled the dependence on tradition as a pretense, arguing that the concept was not an objective restraint because "tradition" is a nebulous term.²⁴⁰ A related problem with the plurality's reliance on tradition was Justice Scalia's mandate for a narrow definition of the examined right.²⁴¹ The right at issue was not the one the plurality explored, but rather, whether the adulterous father-child relationship fell under the protection of the more general due process safeguards for parent-child relationships.²⁴² Toward that end, critics of the Michael H. decision have argued that the plurality's analysis allowed Justice Scalia to base the holding in morality.²⁴³

Such is the case with Montana v. Egelhoff. Justice Scalia applied the narrow fundamental tradition approach to uphold the constitutionality of . 45-2-203 on moral grounds. The common-law history of voluntary intoxication evidence that Justice Scalia relied on evinced a clear moral reprobation of intoxicated defendants.²⁴⁴ Justice Scalia attempted to justify reliance on the common law with more practical rationales, such as the propensity of intoxication evidence to mislead juries²⁴⁵ and the ban's role in deterring intoxicated crimes;²⁴⁶ but these justifications are simply false. It is the third justification that forms the basis of the decision: statutes like . 45-2-203 codify a moral disdain for intoxicated defendants.²⁴⁷

Similarly illustrative of Justice Scalia's moral reasoning in Egelhoff is his characterization of the right to be examined: the defendant must show that the right to present evidence of voluntary intoxication on the issue of mens rea is a fundamental principle of justice.²⁴⁸ This formulation of the issue is too literal. By defining the right so narrowly, Justice Scalia makes the Due Process Clause a rigid doctrine unable to adapt to changes in society.²⁴⁹ The fact that eighty percent of the states have abandoned the common-law doctrine used to justify the ban illustrates the unworkability of Justice Scalia's approach.

This substantial shift is a strong indication that the reasons for the common-law tradition no longer are applicable. Quite simply, social mores have changed. For example, there is a large disparity in the scientific and psychological understanding of intoxication today than during the common-law period Justice Scalia relied upon.²⁵⁰ It is unnecessary for a contemporary jurist to rely on the knowledge and social stigmas of an age long gone, especially when those factors have changed substantially and are no longer relevant.²⁵¹

The relevant fundamental right here is the right to present a defense.²⁵² As such, the "fundamental principle of justice" test has no place in Egelhoff. The Court erred by abandoning the analysis applied in cases such as Crane v. Kentucky,²⁵³ and in the process, incorrectly overturned the Montana Supreme Court on primarily moral grounds. The question then becomes whether Egelhoff harmed the right to present a defense doctrine.

The answer is no. The Court essentially was forced to apply the analysis common to right to present a defense precedent. The Court purported to apply the Patterson test, requiring Egelhoff to show that the right to consider intoxication evidence in determining mental state is a fundamental one, and concluded that he failed to show it as a fundamental right.²⁵⁴ But the plurality was forced to acknowledge that the exclusion of such evidence was not fundamental.²⁵⁵

In applying the test used in right to present defense cases, the plurality attempted to justify its adherence to the common-law principles.²⁵⁶ By suggesting that the relevancy and quality of intoxication evidence should be weighed against the state's justifications for excluding the evidence, the Court added Egelhoff to the growing list of decisions endorsing the balancing test for cases involving the right to a defense.

The reliance on fairly weak justifications, however, does not bode well for future application of the doctrine. If the Court is willing to accept ad hoc rationalizations²⁵⁷ based on less than plausible evidence in upholding statutes such as Montana's,²⁵⁸ then it is difficult to see how future defendants will be able to convince courts that the exclusion of evidence in their situations was justifiable. It is likely that the Court gave . 45-2-203 an added presumption of constitutionality because of its moral ramifications. The Court may not be so quick to accept ad hoc justifications with other evidentiary issues.

The most telling sign that the right to present a defense doctrine did not suffer severely in Egelhoff is the sharp division between the Justices. An analysis of Justice Ginsburg's concurrence shows that this easily could have been a 4-3 plurality finding a due process violation. Justice Ginsburg wrote that if . 45-2-203 amounted to a limitation on relevant evidence with respect to the mens rea, then the statute would be unconstitutional.²⁵⁹ Justice Ginsburg's belief that the statute was constitutional rested on the notion that . 45-2-203 redefined the mens rea of deliberate homicide and that this was well within the bounds of permissible legislative activity.²⁶⁰ Although Justice Ginsburg is correct that Montana may define deliberate homicide as it pleases, it is difficult to accept her assertion that this was what Montana had done. As Justices O'Connor,²⁶¹ Souter,²⁶² and Breyer²⁶³ each argued in their respective dissents, the Montana Supreme Court determined that . 45-2-203 did not redefine the mental elements of the crime, as Justice Ginsburg mistakenly believed.²⁶⁴ Given that the U.S. Supreme Court is bound by the Montana Supreme Court's interpretation of its own laws,²⁶⁵ Justice Ginsburg's position that the statute was nothing more than a legislative redefinition of deliberate homicide is untenable. Thus, her statement that she would find constitutional fault with an evidentiary exclusion indicates that the Court could have affirmed the Montana Supreme Court's determination that . 45-2-203 infringed Egelhoff's right to present a defense. Given this precarious balance between overruling and affirming, Egelhoff may be an anomaly in the jurisprudence of the right to present a defense.

V. RECOMMENDATIONS AND CONCLUSION

Courts should be wary of using Montana v. Egelhoff as precedent in cases involving the right to present a defense. The plurality's failure to recognize the standards established in case law under the right to present a defense doctrine is dangerous. Specifically, courts should be wary of applying the Patterson test instead of the balancing test. Requiring a defendant to show that the evidence in question invokes a fundamental principle of justice effectively upholds the exclusion of that evidence, distorts precedent, and allows the judge's personal morality to dictate the outcome. This inquiry ignores the rationale of Chambers and the right to present a defense: the adversarial process functions best when the jury hears relevant and reliable evidence. Accordingly, courts should continue to analyze evidentiary exclusions under the balancing test and allow such evidence to be presented when it is probative.²⁶⁶

Courts also should be careful not to rely on Justice Scalia's justifications for excluding intoxication evidence because they are highly suspect and are subject to scrutiny. Medical and legal experts generally agree that intoxication evidence is reliable and does not mislead juries.²⁶⁷ Absent the moral belief that such evidence should be kept out of court, there is little support for the notion that intoxication evidence is any less important than evidence of insanity or other potentially confusing issues, which is admissible in trials.²⁶⁸ The Court's treatment of alcohol and intoxication is a regrettable affirmation of the law's inability to recognize that which society openly acknowledges. Courts should be encouraged to accept evidence of the mental and physiological effects of alcohol. In that way, the law can move past the moral issues surrounding alcohol and address the more important issue of how alcohol can affect the mental state of a defendant.

Undoubtedly, the debate over the merits of allowing intoxication evidence to show that a defendant failed to develop the mental requirements of a crime will rage on long after the effects of Montana v. Egelhoff have subsided. The Montana Supreme Court already has declined to review the issues raised in Egelhoff.²⁶⁹ Additionally, the Egelhoff decision already has begun to appear in court decisions across the country.²⁷⁰ The most widespread repercussion of Engelhoff may be a trend among state legislatures to enact similar statutes, given that the decision has opened the door to easier convictions for defendants who were intoxicated at the time of the crime.

The effect of Egelhoff on the right to present a defense doctrine will be clearer as courts begin to invoke its holding. The slim margin by which the Montana statute was ruled constitutional, the distortion of precedent, and the fairly mild attack on the right to present a defense doctrine will mitigate Egelhoff's effect. Egelhoff is more indicative of an agreement with the moral condemnation of an intoxicated defendant than of a growing dissatisfaction with a defendant's due process right to present a defense.²⁷¹ Thus, Montana v. Egelhoff may prove to be only a footnote in the seemingly ever-evolving constitutional right to present a defense doctrine.

* B.S., 1995, Elizabethtown College; J.D. Candidate, May 1998, American University, Washington College of Law. I would like to thank Dean Jamin Raskin and Scott Erlich for their comments. My unending gratitude goes out to all of my friends and family for their support. This Note is dedicated to Regina and the late Kevin McManus, whose unconditional love will always be cherished.

1. See Katherine Prescott, Drawing Line Against Underage Drinking, STAR TRIB., Sept. 16, 1996, at 11A. Of these 111 million alcohol users, more than ten million are alcoholics. See generally Note, Alcohol Abuse and the Law, 94 HARV. L. REV. 1660 (1981) (discussing changes in law prompted by pervasiveness of alcohol abuse).

2. See Note, supra note 1, at 1681-82 (noting that approximately 50% of homicides committed involve both attackers and victims who were under the influence of alcohol at least partially). A number of studies have detailed the correlation between alcohol and violent crime. Professor Nemerson provided a small sample of these statistics:

Of 882 felons arrested in a two-year period in Cincinnati, 64 percent had a urine alcohol level of 0.10 percent or higher. In crimes of violence, the incidence varied from 67 to 88 percent. A four-year study of 588 homicide cases in Philadelphia revealed that one or both parties had been drinking in 64 percent of the cases. In 44 percent of these cases, both parties had been drinking.

Steven S. Nemerson, Alcoholism, Intoxication, and the Criminal Law, 10 CARDOZO L. REV. 393, 446 n.214 (1988) (citing Moore, Legal Responsibility and Chronic Alcoholism, 122 AM. J. PSYCHIATRY 748, 753 (1966)). These studies have led to the conclusion that alcohol abuse is more common among felons convicted of violent crimes than among the general population or convicted felons as a whole. See Note, supra note 1, at 1682 (citing FRANK P. GRAD ET AL., ALCOHOLISM AND THE LAW 2 (1971); Donald W. Goodwin et al., Felons Who Drink: An 8-Year Follow-Up, 32 Q.J. STUD. ALCOHOL 136, 139 (1971)). The connection between alcohol and violence is rooted in the basic inhibitory affects that alcohol has on the central nervous system. It is well established that alcohol decreases an individual's self-control and inhibitions. See Nemerson, supra, at 416 (asserting that suppressive effects of alcohol on one's reasoning, judgement, morals, conscience, and other cognitive abilities is well documented). This theory suggests that an individual will do things after drinking alcohol that they normally would not. See Monrad G. Paulsen, Intoxication as a Defense to Crime, 1961 CURRENT PROBS. IN CRIM. L. 1, 1 (arguing that "a person changes his personality to some extent" after drinking). In this respect, the physiological effects of alcohol can lead to criminal activity regardless of the individual's intentions prior to drinking. See id.

A variation on this direct causation theory is that alcohol does not cause crime, but rather contributes to it. See Note, supra note 1, at 1682. Such is the case with the individual who drinks to alleviate nerves after deciding to commit a crime. See id. Thus, alcohol has no role in forming the criminal intent, but provides the necessary courage to manifest it. The fact that not everyone who becomes intoxicated commits a crime suggests that this view has some validity. See id. Justice Scalia took this theory a step further in Montana v. Egelhoff, arguing that intoxicated individuals act violently not due to biology, but because society has been taught that intoxicated persons act violently as a matter of fact. See 116 S. Ct. 2013, 2021 (1996) (plurality opinion).

3. See generally Note, supra note 1 (providing overview of various debates regarding alcohol abuse). It is widely believed that the law has been slow in adapting to developments in the understanding of alcohol and its affects on humans. See id. at 1661; see also Egelhoff, 116 S. Ct. at 2030 (O'Connor, J., dissenting) (characterizing changes in doctrine forbidding voluntary intoxication evidence as "slow progress typical of the common law"). Despite its slow evolution, the law among the states concerning intoxication evidence and mens rea is fairly consistent, contrary to Justice Scalia's characterization that the law is in a state of flux. See Egelhoff, 116 S. Ct. at 2021 (plurality opinion) (holding that use of intoxication evidence in determining mens rea "has not received sufficiently uniform and permanent allegiance"). Involuntary intoxication is a complete defense, excusing the commission of the crime. Such instances, however, are extremely rare. Professor Hall argues that judgments of guilt in instances of fraud and coercion have all but eliminated the concept of involuntary intoxication. See Jerome Hall, Intoxication and Criminal Responsibility, 57 HARV. L. REV. 1045, 1056 (1944) ("As regards 'coercion,' the case-law implies that a person would need to be bound head and foot, and the liquor literally poured down his throat . . . before the exception, so universally voiced, would have any effect of judicial decision.").

The law on voluntary intoxication defenses is less settled. Some commentators argue that voluntary intoxication never should excuse a crime. See Paulsen, supra note 2, at 2-3 (stating judicial and legislative belief that voluntary intoxication cannot excuse crime). One author writes that allowing a broad voluntary intoxication defense will fail to serve society's interest in safety and will not deter similar actions in the future. See Note, supra note 1, at 1685 (expressing need to avoid frivolous intoxication claims). Critics are fairly uniform, however, in their agreement that the failure to consider voluntary intoxication evidence in any respect is too restrictive to prove rational. Although drunkenness may deserve moral outrage, getting drunk is not in itself a crime. See Note, supra note 1, at 1686; see also Arthur A. Murphy, Has Pennsylvania Found a Satisfactory Intoxication Defense?, 81 DICK. L. REV. 199, 204-05 (1977) (arguing that because alcohol can affect ability to form intent, conviction without consideration of intoxication may punish defendant severely for "relatively minor delict of getting drunk"). More importantly, intoxication may prevent the accused from forming the required intent, raising serious questions about his culpability. Scholars cite the need to balance the potential for massive numbers of defendants who will be permitted to commit crimes while intoxicated with the realization that alcohol plays a role in crime and criminal intent. See Note, supra note 1, at 1686 (arguing that limitation of intoxication evidence in defense will avoid such abuses); see also supra note 2 and accompanying text (discussing interplay of alcohol and crime).

The compromise is the commonly followed practice of allowing evidence of voluntary intoxication when the defendant argues that he did not possess the mens rea necessary to be guilty of the crime. See Murphy, supra, at 199-200 ("The great majority of American jurisdictions follow what may be characterized as a 'capacity defense' approach to the defense of voluntary intoxication."). Within this middle ground, most courts draw additional lines between general and specific intent. See generally Frank J. Remington & Orrin L. Helstad, The Mental Element in Crime-A Legislative Problem, 1952 WIS. L. REV. 644 (providing detailed description of general and specific intent and its role in criminal justice system). Voluntary intoxication usually cannot be considered if the crime is one of general intent. See Paulsen, supra note 2, at 9. In these situations, it is presumed that the intent is manifested by engaging in the illegal activity. Intoxication is relevant only if the crime is a specific intent crime; there must be a general intent to commit an act with additional intent to commit other crimes. An example of a specific intent crime is burglary, which requires intent to enter the property of another with the intent to take his possessions. Most critics assail the specific/general intent distinction as irrelevant and empty. See 2 CHARLES E. TORCIA, WHARTON'S CRIMINAL LAW . 111, at 104-05 (15th ed. 1995) (indicating that distinction is "difficult to perceive"). Critics claim that the relevant inquiry is whether the defendant has formed the intent to commit a crime, whether general or specific. See, e.g., Edward H. Benton et al., Special Project: Drugs, 33 VAND. L. REV. 1145, 1176 (1980) ("[T]he . . . logical view is to admit evidence of intoxication in all cases in which intent, whether general or specific, is an element of the crime."); Nemerson, supra note 2, at 423 ("This doctrinal approach is wrong in principle."); Note, supra note 1, at 1684 ("Both general and specific intent crimes require a particular intent."); Scott A. Anderegg, Note, The Voluntary Intoxication Defense in Iowa, 73 IOWA L. REV. 935, 955 (1988) (asserting that it is logical to allow intoxication to negate both general and specific intent crimes). Whether intent is labelled "specific" or "general," if intoxication negates the requisite element of intention, then the crime has not been committed. Conditioning guilt on an extra mens rea term avoids addressing the real issue: "what the legal significance of drunkenness should be." Note, supra note 1, at 1684 (asserting that reliance on general and specific intent is unsound).

4. See supra note 3 and accompanying text.

5. 410 U.S. 284 (1973).

6. 116 S. Ct. 2013 (1996) (plurality opinion), rev'g 900 P.2d 260 (Mont. 1995).

7. See MONT. CODE ANN. . 45-2-203 (1995). This section states:

A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the defendant proves that he did not know that it was an intoxicating substance.

Id.

8. See Egelhoff, 116 S. Ct. at 2024 (plurality opinion).

9. See id. at 2023-24 (plurality opinion).

10. See generally Robert N. Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 IND. L. REV. 711 (1976) (detailing history of right to present a defense). The history of the right to a defense is a long and complex one, and it is not the intention of this Note to provide a thorough examination of its growth. Rather, Part I of this Note seeks to sketch the general treatment of the right by the Supreme Court.

11. 53 U.S. (12 How.) 361 (1851), overruled by Rosen v. United States, 245 U.S. 467 (1918). Reid involved the appeal of a murder conviction and the exclusion of an accomplice's testimony on behalf of the defendant on trial. The ultimate rejection of the appeal was based on an interpretation of the Judiciary Act of 1789 and did not implicate constitutional principles. See United States v. Reid, 53 U.S. (12 How.) 361, 365-66 (1851); Clinton, supra note 10, at 742-44. In Rosen, the Court specifically overruled Reid. See Rosen, 245 U.S. at 470-71. There the Court also was concerned with witness exclusion issues. Recognizing a growing shift toward erring on the side of permitting relevant testimony, the Court approved the trial court's admission of testimony by a witness who had been convicted of forgery. Most importantly, the opinion expressed the notion that arriving at the truth is served best by allowing pertinent and reliable evidence and then allowing the jury to decide the importance of testimony. See id. at 471.

12. See Clinton, supra note 10, at 747. Professor Clinton explains that the Supreme Court's failure to address the constitutional significance of evidentiary exclusions was a result of how the Court came to hear the cases in the first instance. See id. Until approximately 1920, many of the evidence cases were heard by the Court as writ of error appeals to the lower courts. See id. Because the Supreme Court has supervisory power over the lower courts, it was unnecessary to approach the appeals from a constitutional standpoint. See id.

13. 212 U.S. 183 (1909). "[T]he strongest early statement by the Court regarding the exclusion of portions of the defense's evidence came in Crawford v. United States." Clinton, supra note 10, at 746.

14. See Clinton, supra note 10, at 747 (arguing that tone of decision emits concern for fair trial).

15. See, e.g., Hovey v. Elliott, 167 U.S. 409, 417 (1897) (asserting that right to be heard in one's defense was a fundamental right under due process); Windsor v. McVeigh, 93 U.S. 274, 277 (1876) ("A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal."); McVeigh v. United States, 78 U.S. (11 Wall.) 259, 267 (1870) (holding that social and judicial principles mandate that accused be given hearing).

16. 267 U.S. 517 (1925).

17. 333 U.S. 257 (1948).

18. See Clinton, supra note 10, at 751 (arguing that Cooke and Oliver touch only superficially on right to a defense and that greater concern is Court's application of right to a defense in cases where defendant was denied right to present a defense only partially). Both Cooke and Oliver involved cases in which the trial judge convicted the defendant of contempt without affording the defendant the right to present a defense. See Cooke v. United States, 267 U.S. 517, 537 (1925); In re Oliver, 333 U.S. 257, 258 (1948).

19. See Clinton, supra note 10, at 752-56. Professor Clinton laments that the Court had opportunities in cases such as Yakus v. United States, 321 U.S. 414 (1944), to apply the constitutional right to a defense in the partial exclusion situation. Yakus concerned evidence restrictions under the Emergency Price Control Act of 1942. See Yakus, 321 U.S. at 418. Chief Justice Stone, writing for the majority, accepted the notion that due process affords a defendant the "reasonable opportunity to be heard and present evidence." Id. at 433. Stone, however, felt that the opportunity had been given to the defendant prior to the criminal trial, and therefore, found no due process violation at that level. See id. at 434 (stating that in light of defendant's failure to assert a right to an available administrative remedy, the adequacy of administrative procedures was not an issue ripe for review).

20. See, e.g., Specht v. Patterson, 386 U.S. 605 (1967) (analyzing Colorado Sex Offenders Act that allowed for an increased sentence of a convicted sex offender if the judge felt that the accused was a threat to society); Washington v. Texas, 388 U.S. 14 (1967) (addressing Texas statute prohibiting testimony of one participant on behalf of another participant); Ferguson v. Georgia, 365 U.S. 570 (1961) (addressing Georgia rule forbidding defendant from giving sworn testimony but allowing defendant to give statement to court).

21. See, e.g., Ferguson, 365 U.S. at 596 (grounding unconstitutionality of statute in right to counsel); Clinton, supra note 10, at 764 (arguing that invalidation of law under due process in Specht did not contribute to growth of right to defense doctrine because, as in Cooke and Oliver, defendant was denied any evidence); see also supra notes 16-17 and accompanying text (describing cases in which Court started to acknowledge right to be heard in defense).

22. 395 U.S. 411 (1969).

23. See Jenkins v. McKeithen, 395 U.S. 411, 413-14 (1969) (stating purpose of Commission included investigating and finding facts "relating to violations or possible violations of criminal laws of the state of Louisiana").

24. See id. at 427-28. The Court cited numerous reasons for finding that the Commission functioned as a criminal adjudicatory body: (1) the scope of the inquiries was limited to criminal law violations; (2) the Commission did not have civil jurisdiction; (3) the Commission had the power to compel the attendance of witnesses; and (4) the Commission could conduct public hearings. See id. at 415-18.

25. See id. at 428 (finding procedures of Commission insufficient to satisfy due process requirements because no provision was made for accused to confront and cross-examine witnesses).

26. Id. at 429 (noting the Commission's procedures drastically limited right to present evidence on defendant's own behalf).

27. See Clinton, supra note 10, at 771; see also Brooks v. Tennessee, 406 U.S. 605, 606 (1972) (addressing a Tennessee statutory requirement that a defendant testify before any other testimony is presented to the court). The Court in Brooks found a statutory requirement that the defendant testify unconstitutional because it violated the defendant's right against self-incrimination. The Court's decision, however, adopted a test that balanced the state interest in making the defendant testify first against an infringement on his Fifth Amendment rights. See id. at 609-12. Professor Clinton argues that if Justice Brennan simply had utilized the Due Process Clause right to a defense instead of a "strained self-incrimination privilege analysis," the Court would have established a much needed analytical test in the right to present a defense. See Clinton, supra note 10, at 776.

28. 409 U.S. 95 (1972).

29. See Webb v. Texas, 409 U.S. 95, 95-97 (1972). The witness in question was himself in jail at the time of the trial. See id. at 95. Apparently concerned with the reliability of such a witness, the judge issued the following warning:

Now you have been called down as a witness in this case by the Defendant. It is the Court's duty to admonish you that you don't have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on.

Id. at 95-96. The Court disagreed with the lower courts, stating that the warning evinced a clear expectation on the part of the judge that the witness would lie and that the tone of his statement was such that it could be expected to intimidate the witness. See id. at 97-98.

30. See id. at 98.

31. See Clinton, supra note 10, at 779. The language utilized in Webb was taken from Washington v. Texas, 388 U.S. 14, 19 (1967). In Washington, the Court found that a Texas statute forbidding the testimony of criminal participants in the defense of each other was unconstitutional as a violation of the defendant's Sixth Amendment right to have compulsory process for obtaining favorable witnesses. See id. Professor Clinton writes that the Court's use of language from Washington, although relying on the Fourteenth Amendment in Webb, is significant because the situation in Webb was probably a more egregious violation of the compulsory process than that present in Washington. See Clinton, supra note 10, at 779. More specifically, the defendant in Washington was denied the testimony of a witness, whereas the witness in Webb was the only witness. See id. As such, Professor Clinton indicates that the Webb decision might signal the Court's willingness to rely "on an elastic due process analysis." Id. at 778. Such an argument must be tempered with Cool v. United States, 409 U.S. 100 (1972), a companion case to Webb. At issue in Cool was a jury instruction concerning the testimony of one of the defendant's accomplices. See id. at 100. The judge's instruction, in the view of the Court, implied that the jury should throw out the testimony unless it considered the testimony valid "beyond a reasonable doubt." See id. at 102. The Court held that the instruction violated Cool's guarantee to compulsory process by obstructing the exercise of the rights intimated in Washington. See id. at 104. It would seem that the facts in Cool are less amenable to a compulsory process standard than Webb, yet the Court used the Sixth Amendment in Cool but not in Webb. See Clinton, supra note 10, at 781. This fact weakens the statement that Webb signaled a shift to reliance on the Due Process Clause in evidentiary exclusions. Professor Westen argues that the right to present a defense would be founded best on the compulsory process guarantees of the Sixth Amendment, a proposition he supports with reference to the Constitution and its history. See Peter Westen, The Compulsory Process Clause, 73 MICH. L. REV. 71, 182-84 (1974). Professor Clinton counters that such a grounding unnecessarily would require finding the right to a defense in the penumbra of the Sixth Amendment. See Clinton, supra note 10, at 781-83. Professor Clinton suggests that the inherent flexibility of the Due Process Clause allows the doctrine to mature on its own terms rather than according to the restrictive phrasing of the Sixth Amendment. See id. The Supreme Court appears to agree with Professor Clinton, as it has moved toward grounding the right to present a defense in the Due Process Clause. See Chambers v. Mississippi, 410 U.S. 284 (1973).

32. 410 U.S. 284 (1973).

33. See Stephen G. Churchwell, The Constitutional Right to Present Evidence: Progeny of Chambers v. Mississippi, 19 CRIM. L. BULL. 131, 131-32 (1983) (stating that Chambers has led Supreme Court to limit exclusion of evidence based on a defendant's due process rights); Clinton, supra note 10, at 787.

34. See Chambers, 410 U.S. at 285.

35. See id. at 294 (discussing effect of application of voucher and hearsay rules by trial judge). The facts of Chambers are long and complicated. The story begins on June 14, 1969, when two officers from the Woodville, Mississippi, Police Department attempted to effect a warrant for the arrest of C.C. Jackson. Jackson resisted and was aided by at least 50 persons. Other officers arrived and their attempt to arrest Jackson led to the firing of five or six shots. One of the original arresting officers, Aaron Liberty, was shot and killed. Before dying, Liberty was able to fire some shots toward what many believed to be the area of the gunman. The second shot hit Leon Chambers. The police attended to Liberty, believing Chambers dead. Chambers, however, was alive and sometime later was taken to the hospital by three friends. The police placed Chambers under guard at the hospital and charged him with the murder of Officer Liberty. The controversy in the case surrounded one of Chambers' friends, Gable McDonald. McDonald was present in the crowd on June 14 and was a part of the group who took Chambers to the hospital. In November, McDonald confessed to Chamber's attorney that he had killed Liberty with his own .22-caliber revolver and that he had told another friend that he shot Liberty. McDonald submitted to the attorney that his confession was voluntary. McDonald then was taken into custody. A month later, McDonald recanted his confession. He said that another friend had convinced him to confess, promising him that he would not go to jail and could reap some of the profits that Chambers would receive in a suit against the City of Woodville. His new story was that he was not at the scene but came later when he and a friend, who were having a beer down the street, heard the shots. There they found Chambers, and he and other friends took Chambers to the hospital. He also maintained that he had owned a .22, but that it had not been in his possession for some time. Chambers, among other things, asserted at trial that McDonald had killed Liberty. One witness testified that he saw McDonald shoot Liberty, and another testified that he saw McDonald after the shooting with a gun in his hand. Chambers also attempted to show that McDonald had confessed numerous times to the shooting, but that "he was thwarted in his attempt to present this portion of his defense by the strict application of certain Mississippi rules of evidence." First, Chambers was denied an opportunity to examine McDonald as an adverse witness. The trial judge held that McDonald was "hostile" but not "adverse in the sense of the word." Chambers then attempted to admit the testimony of three witnesses to whom McDonald had confessed. All three were denied under the hearsay rule. The Mississippi Supreme Court upheld all four exclusions. Chambers appealed, claiming that these exclusions made his trial fundamentally unfair and violated his due process rights. See id. at 285-94.

36. See id. at 303

37. Id. at 294 (holding that hearsay and voucher exclusions prevented Chambers from receiving a fair opportunity to defend). The Court, in an opinion written by Justice Powell, first examined the trial court's refusal to allow a cross-examination of McDonald. The Court stated that the right to confront and cross-examine a witness is essential in ensuring that the truth-finding role of the trial is performed. See id. at 295 (citing Pointer v. Texas, 380 U.S. 400, 405 (1965)). Thus, the reasoning justifying the denial of this right must be scrutinized. See id. at 295. In this case, the State attempted to justify the restriction on the grounds that McDonald was not adverse in that he had not fingered Chambers as the gunman. See id. at 297. The Court rejected this argument as a technicality, hypothesizing that McDonald's confessions and subsequent retractions tended to exculpate and then incriminate Chambers. See id. Thus, the denial of cross-examination "plainly interfered with Chambers' right to defend against the State's charges." Id. at 298. The Court then turned to the trial court's refusal to allow the testimony of the three witnesses to whom McDonald had confessed. The Court stated that the right to present witnesses in one's defense is fundamental. See id. at 302 (citing Webb v. Texas, 409 U.S. 95 (1972); Washington v. Texas, 388 U.S. 14 (1967); In re Oliver, 333 U.S. 257 (1948)). Under this premise, a hearsay rule should not be applied "mechanistically" when the testimony appears to be reliable and is essential to the defense. See id. The Court concluded that the combination of forbidding a cross-examination of McDonald by the defense and the exclusion of three reliable and pertinent witnesses amounted to a violation of Chamber's due process rights. See id. at 302-03.

38. See id. at 302. Justice Powell wrote:

In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.

Id. at 302-03. Some critics have argued that this statement is modest and misplaced. See, e.g., Note, State v. Gremillion: The Constitutional and Evidentiary Elasticity of the Louisiana Residual Hearsay Exception in Criminal Cases, 50 LA. L. REV. 845, 855 (1990) (stating that Chambers established new constitutional principles). Professor Clinton submits that the decision broke ground in three ways. First, when viewed in conjunction with Webb v. Texas, 409 U.S. 95 (1972), the Court had rested a defendant's right solidly on the Due Process Clause instead of on another constitutional principle. See Clinton, supra note 10, at 791. Second, Chambers involved the partial restriction on a defendant's testimony. See id. Third, because the confession was submitted to the jury, Chambers "represents the first case in which the right to defend has been applied to arguably cumulative, albeit critical, defense testimony." Id. at 791-92.

39. See Churchwell, supra note 33, at 138 (noting trend in courts to use Chambers' principle in expansion of defendant's due process rights); see also infra Part I.B (examining right to present a defense after Chambers).

40. See Clinton, supra note 10, at 792.

41. See, e.g., Montana v. Egelhoff, 116 S. Ct. 2013, 2031 (1996) (O'Connor, J., dissenting) (labeling right to present a defense as fundamental); United States v. Perkins, 937 F.2d 1397, 1401 (9th Cir. 1991) ("The right to present a defense is clearly fundamental . . . .").

42. 467 U.S. 479 (1984).

43. See California v. Trombetta, 467 U.S. 479, 481 (1984). Each of the respondents in the case were appealing drunk driving convictions on the grounds that had the state saved the breath samples on which the determination was made that they were drunk, they would have been able to impeach the evidence. See id. at 482-83.

44. See id. at 491 (holding that Due Process Clause does not require states to "preserve breath samples" for purpose of introducing such as evidence).

45. Id. at 485.

46. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("In reaching this judgment, we establish no new principles of constitutional law."); see also supra note 38 and accompanying text (detailing context and relevance of Justice Powell's statement).

47. 476 U.S. 683 (1986). Crane was not the first post-Chambers case to cite the right to present a defense principle. See, e.g., Green v. Georgia, 442 U.S. 95, 97 (1979); Wolff v. McDonnell, 418 U.S. 539, 583 (1974) (Marshall, J., dissenting).

48. See Crane v. Kentucky, 476 U.S. 683, 687 (1986). The defendant was being questioned as to possible involvement in another crime when he suddenly began confessing to various crimes. See id. at 684. The police took him to the station and obtained a confession for the murder in question. The defendant attempted to suppress the confession as a violation of his Fifth and Fourteenth Amendment rights and was denied. Attempts by the defendant at trial to submit evidence as to the circumstances surrounding the interrogations were excluded by the judge. The defendant appealed, claiming the exclusion was a violation of his rights under the Sixth and Fourteenth Amendments. See id. at 684-86.

49. Id. at 687 (citing Trombetta, 467 U.S. at 485).

50. See id. The Court held that the right to present a defense was grounded in the Due Process Clause after Chambers. See id. at 690; see also Gilmore v. Taylor, 508 U.S. 333, 343 (1993) (noting due process protection of opportunity to present a defense in cases involving evidentiary restrictions (citing Crane, 476 U.S. at 690; Trombetta, 467 U.S. at 485; Chambers v. Mississippi, 410 U.S. 284 (1973))); Taylor v. Illinois, 484 U.S. 400, 423 (1988) (Brennan, J., dissenting) (stating that Due Process Clause affords protection of right to present relevant defense evidence); Rock v. Arkansas, 483 U.S. 44, 51 (1987) (articulating that right to testify is protected under Due Process Clause).

51. See Crane, 476 U.S. at 690. The Court adopted the Chambers test of weighing the interests of the state in applying or adopting its evidentiary standards against the limitation that the rule places on the right of the defendant to present an adequate defense. See id.; see also Rock, 483 U.S. at 61 ("A State's legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.").

52. Crane, 476 U.S. at 690.

53. Id. at 690-91; cf. Taylor v. Illinois, 484 U.S. 400, 408-09 (1988) (grounding right to present evidence and to establish a defense in Sixth Amendment and Compulsory Process Clause). In Taylor, the Court wrote that the right to develop a defense through a presentation of relevant facts assured that the adversarial system of justice functioned properly and that such a right therefore was fundamental. See id. at 408-09 (citing United States v. Nixon, 418 U.S. 683, 719 (1974)).

54. See, e.g., Gilmore, 508 U.S. at 343, Taylor, 484 U.S. at 423 (Brennan, J., dissenting); Rock, 483 U.S. at 51; Crane, 476 U.S. at 690; Trombetta, 467 U.S. at 485; Nixon, 418 U.S. at 709.

55. See, e.g., United States v. Lopez-Alvarez, 970 F.2d 583, 587-88 (9th Cir. 1992) (denying crucial and reliable evidence is due process violation of right to complete defense); United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990) (grounding fundamental right to present a defense in Due Process Clause (citing Crane, 476 U.S. at 690; Chambers, 410 U.S. at 302; Washington v. Texas, 388 U.S. 14, 19 (1967))); Card v. Dugger, 911 F.2d 1494, 1515 (11th Cir. 1990) (acknowledging due process restrictions on exclusion of evidence); Ferreira v. Fair, 732 F.2d 245, 248 (1st Cir. 1984) (stating that evidentiary restriction can amount to "deprivation of due process" (citing Chambers, 410 U.S. at 298)); Trussell v. Estelle, 699 F.2d 256, 262 (5th Cir. 1983) (indicating that exclusion of crucial evidence raised due process concerns); Virgin Islands v. Smith, 615 F.2d 964, 970 (3d Cir. 1980) (noting that Supreme Court has recognized "due process right to present an effective defense"); Conner v. Auger, 595 F.2d 407, 411 (8th Cir. 1979) (citing Chambers' holding that due process guarantees right to present relevant evidence in defense); United States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978) (finding due process right to present "clearly exculpatory evidence"); cf. Johnson v. Chrans, 844 F.2d 482, 484 (7th Cir. 1988) (intimating that right to present evidence, even relevant and competent exculpatory evidence, can be superseded by legitimate state justifications).

56. 996 F.2d 1481 (2d Cir. 1993).

57. See Williams v. Lord, 996 F.2d 1481, 1483-84 (2d Cir. 1993).

58. See id. at 1482. Williams was on trial for murder and weapons charges in the death of John Neil Bennett. At trial, Williams argued that Bennett's death was the result of self-defense. Bennett had paid Williams, who was a prostitute, to have oral sex. Williams claimed that Bennett smoked crack and became violent, grabbing her throat and cutting her with a knife. She grabbed the knife, stabbed Bennett, and then ran, throwing the knife away. The testimony at trial indicated that Williams had suffered no visible wounds and that there was no medical evidence consistent with the presence of narcotics in Bennett's body. To support a weak self-defense claim, Williams attempted to submit evidence that Bennett had a history of violent sexual activity in light of a memo indicating a prior rape investigation. The trial court did not allow the admission of the evidence and Williams was convicted. The New York Court of Appeals denied her appeal that the exclusion of the evidence violated her right to present a defense. She then appealed to the Court of Appeals for the Second Circuit, which granted her petition. See id. at 1481-83.

59. See id. at 1482 (arguing that court should err on side of admission given right to present a defense (citing Nixon, 418 U.S. at 709; Chambers, 410 U.S. at 302)).

60. See id. at 1483. The court wrote that although it was unclear whether the right to present a defense was found in either the Due Process Clause or the Confrontation Clause of Compulsory Process guarantees of the Sixth Amendment, it was clear that either could sustain the right to present a defense. See id. (citing Crane, 476 U.S. at 690). Other opinions by the Second Circuit have been more definitive in holding that the Due Process Clause guarantees the right to present a defense. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) (finding right to present a defense implicated in Due Process Clause of Fourteenth Amendment).

61. See Williams, 996 F.2d at 1483-84 (applying balancing test as written in Rock v. Arkansas, 483 U.S. 44, 55-56 (1987)); see also Turpin v. Kassulke, 26 F.3d 1392, 1396 (6th Cir. 1994) (noting that right to present evidence is limited by valid state justifications); United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) (per curiam) (stating that evidentiary restrictions are "constitutional if they 'serve legitimate interests in the criminal trial process' while not 'arbitrary or disproportionate to the purposes they are designed to serve'" (quoting Rock, 483 U.S. at 55-56)); United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992) (holding that due process is violated if there are not valid state reasons for exclusion); Card v. Dugger, 911 F.2d 1494, 1501 (11th Cir. 1990) (writing that defendant's interest in presenting important evidence is defeated by courts interest in speculation about guilt of third party); Johnson v. Chrans, 844 F.2d 482, 484 (7th Cir. 1988) (balancing relevant and competent evidence against state justification for exclusionary rule); Virgin Islands v. Smith, 615 F.2d 964, 974 (3d Cir. 1980) (holding that grant of immunity should be given to witness when he or she can offer relevant evidence and when there is no strong justification for withholding immunity); Conner v. Auger, 595 F.2d 407, 411 (8th Cir. 1979) (balancing right to present evidence against state interest in fairness and reliability); United States v. Herman, 589 F.2d 1191, 1204 (3d Cir. 1978) (adopting Chambers test of balancing importance of evidence with justifications for exclusion).

62. See Williams, 996 F.2d at 1484 (determining that goals furthered by exclusion and irrelevance of evidence justified keeping evidence out of court).

63. See supra note 55 (citing Courts of Appeals' decisions holding that Constitution guarantees right to present a defense).

64. See Chambers, 410 U.S. at 302 (stating that evidence must be "critical" and "trustworthy"); Turpin, 26 F.3d at 1396 (adopting reliability and relevance criteria of Chambers).

65. 900 P.2d 260 (Mont. 1995), rev'd, 116 S. Ct. 2013 (1996) (plurality opinion).

66. See Montana v. Egelhoff, 900 P.2d 260, 261 (Mont. 1995), rev'd, 116 S. Ct. 2013 (1996) (plurality opinion).

67. See id. According to the Montana Supreme Court's opinion, Egelhoff took the gun from the glove compartment of Christianson's car. See id. at 265.

68. See id. at 261.

69. See id.

70. See id. at 262.

71. See id.

72. See id. Testimony by law enforcement officials indicated that Christianson's car had gone off the road in at least five locations. See id.

73. See id.

74. See id.

75. See id.

76. See MONT. CODE ANN. . 45-5-102(1)(a) (1995).

77. Egelhoff, 900 P.2d at 262.

78. See id.

79. See id. (noting that Egelhoff registered .36 BAC one hour after being brought to hospital). Blood alcohol content ("BAC") is the term used to measure the ratio of alcohol to parts of blood in one's blood stream. See Brief for National Association of Criminal Defense Lawyers, at App. A, Montana v. Egelhoff, 116 S. Ct. 2013 (1996) (No. 95-566). Under this standard, the .36 BAC seen in Egelhoff is defined in the following manner:

Above .30, the tier at which repsondent tested, most people are not in a position to drink anymore. They are usually unconscious and will remain in a coma until the body has disposed of enough alcohol so that the nerve centers controlling consciousness may begin to function again. It is important to note that persons in this condition are near the point of death and may die if left unattended.

Id. at 26. In light of this statement, it may be likely that Egelhoff was capable of very little, let alone "knowingly" or "purposely" committing homicide.

80. See Egelhoff, 900 P.2d at 262. Egelhoff's ability to kick the camera, combined with his generally solid coordination, led Detectives Gassett and Bernall, the officer with the camera, to express surprise at Egelhoff's BAC. See id.

81. See id.

82. See id.

83. See id.

84. Id. at 263.

85. See id. at 262.

86. Id.

87. Id. at 262-63.

88. See id. at 262.

89. See id. at 263. Dr. Knecht continued, stating that "an intoxicated person experiencing such a blackout may walk, talk, and fully function, with people around the person unable to tell that the person experienced a blackout." Id.

90. Id. at 263. Section 45-2-203 of the Montana Code states:

Responsibility-intoxicated condition. A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition.

MONT. CODE ANN. . 45-2-203 (1995).

91. See Egelhoff, 900 P.2d at 263.

92. See id. The four issues presented on appeal were:

I. Was Egelhoff denied due process by a jury instruction that voluntary intoxication may not be taken into consideration in determining the existence of a mental state which is an element of the offense?

II. Did the District Court err in permitting a lay witness to give opinion testimony?

III. Are the jury verdicts finding Egelhoff guilty of two counts of deliberate homicide supported by substantial evidence?

IV. Did the District Court err in designating Egelhoff a dangerous offender for purposes of parole?

Id. at 261.

93. See id. at 263.

94. See id.

95. See id. Egelhoff was allowed to submit evidence of intoxication to argue that his lack of memory concerning the night's events was the result of an "alcohol-induced 'blackout'" and that it was impossible for him to drive Christianson's vehicle, as was claimed. See id.

96. See id. at 264.

97. See id. at 266 ("We conclude that the defendant had a due process right to present and have considered by the jury all relevant evidence to rebut the State's evidence on all elements of the offense charged.").

98. See id. at 264.

99. See id. at 265 (listing evidence presented by State). First, Egelhoff had to get the gun from the glove compartment. The state also submitted evidence that Egelhoff made attempts to escape detection, and that a witness saw a stick in the back seat of the car that she believed enabled Egelhoff to drive the car from the back seat. A large number of people who encountered Egelhoff that evening testified that he was coherent and did not appear drunk; these included an employee at the grocery store and a motorist who attempted to aid the car once it had settled in a ditch. Finally, Egelhoff's ability to kick the camera out of the officer's hand demonstrated excellent coordination. See id.

100. See id. (stating that intoxication evidence was relevant to whether Egelhoff acted "knowingly" or "purposely").

101. See id.

102. 410 U.S. 284 (1973).

103. Egelhoff, 900 P.2d at 265 (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973)).

104. 397 U.S. 358 (1970). In re Winship involved the question of whether the Due Process Clause requires proving the elements of crime beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 359 (1970). The Petitioner was a 12-year-old boy who had stolen $112 from a pocketbook. The boy was charged with delinquency that would have amounted to larceny had the boy been an adult, making him a juvenile delinquent under New York law. During an adjudicatory hearing, the boy's attorney argued that the court should require a delinquency charge to be proved beyond a reasonable doubt. The judge, although acknowledging that the evidence might not support a reasonable doubt standard, felt that such a standard was not constitutionally required. Rather, under section 744 of the New York Family Court Act, all that was required was a preponderance of the evidence standard. See id. at 358-60. The Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed the decision and the constitutionality of section 744. See id. at 360. The boy petitioned the Supreme Court for certiorari on the grounds that the Constitution required a reasonable doubt standard. See id. at 358. Whereas the Court in Winship was addressing whether a juvenile was entitled to a reasonable doubt standard, the Montana Supreme Court was concerned with the conclusion that the Due Process Clause requires a reasonable doubt standard in criminal trials. Compare id. at 359, with Egelhoff, 900 P.2d at 264.

105. 442 U.S. 510 (1979). The issue in Sandstrom was the constitutionality of a jury instruction in Montana that the "law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana, 442 U.S. 510, 513 (1979) (adopting prosecution's request to judge for jury instruction). David Sandstrom was on trial for the deliberate homicide of Annie Jessen. See id. at 512. Sandstrom argued that a personality disorder aggravated by alcohol consumption had prevented him from acting "knowingly" or "purposely," as required by statute. See id. (quoting MONT. CODE ANN. . 45-5-102(1)(a) (1978)). The State requested the jury instruction in question and Sandstrom objected, claiming that the instruction unconstitutionally shifted the burden of proof for "knowingly" or "purposely" to the defense. See id. at 513. The judge overruled the objection, delivered the instruction, and Sandstrom was convicted. See id. The Supreme Court of Montana agreed with Sandstrom's contention that Mullaney v. Wilbur, 421 U.S. 684 (1975), In re Winship, 397 U.S. 197 (1970), and Patterson v. New York, 432 U.S. 197 (1977), prohibited shifting the burden of proving the offense elements, but that the prohibition was not absolute and that the state could shift the burden under some circumstances. See Sandstrom, 442 U.S. at 513-514; see also infra note 119 (discussing Mullaney); supra note 104 (discussing Winship); infra note 119 (discussing Patterson). The Court stated that because Sandstrom was required to submit evidence that "he did not intend the ordinary consequences of his acts, [and] not to disprove that he acted purposely or knowingly," the instruction was constitutional. See Sandstrom, 442 U.S. at 513. The Supreme Court reversed, concentrating on the practical effect of the instruction on the jury. See id. at 514. The Court stated that a reasonable jury could have concluded from the language in the instruction that there was a presumption of intent and that it was irrebutable if sufficient facts were presented. See id. at 517. The jury also could have believed that they should find intent unless Sandstrom provided significant evidence otherwise, effectively shifting the burden onto the defense to disprove intent. See id. The Court determined that either of these interpretations would have violated the prohibition on burden shifting established in In re Winship and its progeny. See id. at 521. Ultimately, the Court held that the jury instruction was a due process violation because it shifted the burden of proof of the mental elements of the crime. See id.

106. See Egelhoff, 900 P.2d at 265.

107. 480 U.S. 228 (1987).

108. See Egelhoff, 900 P.2d at 265-66.

109. See Martin v. Ohio, 480 U.S. 228, 231 (1987). The defendant in Martin was on trial for the murder of her husband. After the two had argued over money, the defendant went upstairs, coming downstairs later with her husband's gun in her hand. He questioned her as to what was in her hand and "came at her." Id. at 231. She fired several shots, hitting him with three and killing him. Mrs. Martin was charged with aggravated murder and pleaded self-defense at trial. Ohio case law had held that self-defense was an affirmative defense. See id. at 230 (citing Martin v. Ohio, 488 N.E.2d 166, 168 (1986)). Under Ohio law, the defendant had the burden of proving an affirmative defense. See id. (citing OHIO REV. CODE ANN. . 2901.05(A) (1982)). Martin was convicted, and she appealed the decision, claiming that placing the burden on her violated the Due Process Clause. See id. at 231. Both the Ohio Court of Appeals and the Supreme Court of Ohio rejected her claim. See id. at 230-31.

110. See id. at 233. As in Egelhoff, the Court relied on Patterson to analyze Martin's due process claim. See id. at 232-33; see also infra note 119 and accompanying text (discussing facts of Patterson and Court's holding that defendant's due process rights were not violated because defendant was not required to disprove any facts esstential to charge of second-degree murder). In Patterson, the Court cited the requirement of In re Winship that the prosecution satisfy its burden of proof of every element of the charged offense beyond a reasonable doubt. The Court held that this results in the state requiring the defendant to prove the affirmative defense of extreme emotional disturbance. See Patterson, 432 U.S. at 206. The Court in Martin felt that the similarity between the situations in Martin and Patterson, combined with the deference accorded the states in defining their criminal justice systems, made the Ohio statute constitutional. See Martin, 480 U.S. at 233. Specifically, there was no constitutional violation because Martin had the opportunity to convince the jury that she had acted in self-defense, and the jury decided to convict. See id.

111. See Martin, 480 U.S. at 233-34 (stating that it would be contrary to the holding of In re Winship if the "jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case").

112. See Egelhoff, 900 P.2d at 265.

113. See id. at 266.

114. Id.

115. See Montana v. Egelhoff, 116 S. Ct. 2013, 2025 (1996) (plurality opinion), rev'g 900 P.2d 260 (Mont. 1995).

116. See id. at 2017 (plurality opinion).

117. See id. (plurality opinion). Justice Scalia cited Michigan v. Lucas, 500 U.S. 145 (1991), in which the Court held that relevant evidence may be excluded if the defendant does not adhere to proper procedures. See Egelhoff, 116 S. Ct. at 2017 (plurality opinion). Justice Scalia also relied on Federal Rule of Evidence 403, which permits the exclusion of relevant evidence for a number of reasons, including the danger of misleading the jury or unfair prejudice. See Egelhoff, 116 S. Ct. at 2017 (plurality opinion); FED. R. EVID. 403. Finally, the Court pointed to hearsay exclusions, which keep unreliable evidence out of court. See Egelhoff, 116 S. Ct. at 2017 (plurality opinion).

118. See Egelhoff, 116 S. Ct. at 2017 (plurality opinion) (citing New York v. Patterson, 432 U.S. 197, 201-02 (1977)). The Court in Patterson extended great latitude to the states in administering their criminal justice system and held that, accordingly, the Court should be careful to dismantle an action taken by the states in this area. See 432 U.S. at 201-02.

119. 432 U.S. 197, 201-02 (1977), cited in Egelhoff, 116 S. Ct. at 2017 (plurality opinion). The Court in Patterson addressed the constitutionality of a New York law placing the burden on the defendant to prove, by a preponderance of the evidence, the affirmative defense of extreme emotional distress when attempting to reduce a second-degree murder charge to manslaughter. The defendant, Gordon Patterson, separated from his wife, Roberta Patterson. Roberta began to see an ex-fianc, John Northrup. On December 27, 1970, Patterson borrowed a rifle from a friend and went to the home of his father-in-law. There he saw Roberta naked with Northrup and proceeded to shoot Northrup twice in the head, killing him. See id. at 198. Patterson was charged with second-degree murder.

New York allowed defendants to assert the affirmative defense of "act[ing] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." Id. (citing N.Y. PENAL LAW . 125.25 (McKinney 1975)). The trial judge instructed the jury that under New York law, the State had to prove the elements of second-degree murder beyond a reasonable doubt and that Patterson had to prove that he acted while under the influence of extreme emotional distress by a preponderance of the evidence. If the jury believed that Patterson acted under the influence of extreme emotional distress in intentionally killing Northrup, it could convict him for manslaughter, but not for murder. See id. at 200. The jury convicted Patterson of second-degree murder, and the Appellate Division affirmed. See id. at 201.

After Patterson appealed to the New York Court of Appeals, the Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684 (1975). In Mullaney, the Court struck down a Maine statute that allowed a defendant to rebut the statutory presumption that he committed murder with malice aforethought if the defandant proved that he acted in the "heat of passion on sudden provocation." Mullaney, 421 U.S. at 703 (rejecting Maine's statute, ME. REV. STAT. ANN. tit. 17 . 2551 (West 1964)). The Court expounded that the statute violated due process because it shifted the burden of persuasion from the prosecution to the defense. See id. at 704.

Patterson argued that the New York law was identical to the Maine law, but the Court of Appeals rejected this argument. See Patterson, 432 U.S. at 201, aff'g 347 N.E.2d 898 (N.Y. 1976). The decision stated that the New York law was different than the one in Mullaney because, in proving that he acted under extreme emotional disturbance, Patterson was not required to disprove any facts essential to the charge of second-degree murder. See id. at 214-15 (discussing reasoning of New York Court of Appeals). Patterson appealed to the Supreme Court on due process grounds. See id. at 201.

120. Egelhoff, 116 S. Ct. at 2017 (plurality opinion) (quoting Patterson, 432 U.S. at 201-02). The Court in Patterson, much like the Court in Egelhoff, began its fundamental rights inquiry by discussing the history of the issue. The Court noted that placing the burden of proving extreme emotional distress on the defendant was a broader version of the common-law heat of passion on sudden provocation defense, which also required a defendant to prove the elements of the defense. See Patterson, 432 U.S. at 202. This was the rule for many affirmative defenses at common law, until the Court in Davis v. United States, 160 U.S. 469, 492-93 (1895), rejected such a burden for insanity. It soon became a requirement for prosecutors to disprove the elements of most defenses, including provocation. See Patterson, 432 U.S. at 202.

The Court in Patterson noted, however, that the decision in Davis was not a constitutional ruling, as evidenced by the ruling in Leland v. Oregon, 343 U.S. 790 (1952). Leland affirmed the placement of the burden of proving affirmative defenses on the defendant. See Patterson, 432 U.S. at 203-04 (restating holding of Leland that affirmed constitutionality of requiring defendant to prove defense of insanity by reasonable doubt).

The Court then considered the doctrine established by In re Winship, 397 U.S. 358 (1970), and its progeny. See Patterson, 432 U.S. at 204. The Court in In re Winship stated that the Constitution requires that states prove every element of the offense beyond a reasonable doubt to obtain a conviction. See Winship, 397 U.S. at 364.

The Court also considered Mullaney, which reinforced the holding of In re Winship by finding that a Maine statute, which required a defendant to prove an affirmative defense by disproving an element of the charge against him, violated the Due Process Clause. See Patterson, 432 U.S. at 205.

The Court then considered the implication of Rivera v. Delaware, 429 U.S. 877 (1976), an appeal that claimed Leland's approval of the reasonable doubt standard in the insanity defense had been overruled in In re Winship and Mullaney and replaced by the "preponderance of the evidence" standard. See Patterson, 432 U.S. at 204. In Rivera, the Court dismissed for lack of a substantial federal question. See Rivera, 429 U.S. at 877.

The Court in Patterson stated that these cases stood for the proposition that once a state proved the elements of the charged offense beyond a reasonable doubt, it could choose to allow a defendant to submit an affirmative defense of insanity if proven by a preponderance of the evidence. See Patterson, 432 U.S. at 206. The Court then determined that the New York law on severe emotional disturbance adhered to this doctrine. See id. The prosecution was required to prove every element of second-degree murder beyond a reasonable doubt, and the court instructed the jury accordingly. See id. at 205-06. Additionally, none of the evidence submitted to establish severe emotional distress was required to disprove an element of second-degree murder. See id. at 206. Distinguishing the situation in Mullaney from Patterson, the Court reiterated that there were no presumptions of guilt against Patterson and that the jury simply decided that he failed to prove his defense. See id. at 216-17. Consequently, the Court deemed the New York law on the affirmative defense of extreme emotional disturbance constitutional. See id. at 205.

121. Egelhoff, 116 S. Ct. at 2017 (plurality opinion).

122. See id. (plurality opinion) ("Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice.").

123. See id. at 2018-19 (plurality opinion) (discussing early history of intoxication evidence in law). Justice Scalia began his examination with the premise that colonial England viewed an intoxicated offender as if he committed the crime while sober. See id. at 2018 (plurality opinion) (citing 1 M. HALE, PLEAS OF THE CROWN *32-33). Early American law adopted a similar stance, rejecting intoxication as a defense to a crime. See id. (plurality opinion) (citing HALE, supra, at *32 n.3).

124. See id. at 2019-20 (plurality opinion) (examining treatment of intoxication evidence since 19th century). According to Justice Scalia, the earliest acceptance of intoxication evidence came in 1819 in an English case in which the judge considered intoxication relevant to whether the defendant committed premeditated murder. See id. at 2019 (plurality opinion) (citing 1 W. RUSSELL, CRIMES AND MISDEMEANORS *8). Although the view was slow to gain acceptance, Justice Scalia concedes that it became widely accepted by the end of the 19th century. See id. (plurality opinion).

125. See id. at 2020 n.2 (plurality opinion) (noting that Arizona, Arkansas, Delaware, Georgia, Hawaii, Mississippi, Missouri, South Carolina, and Texas adhere to common-law rule). Three of the nine states have case law that bars the use of voluntary intoxication evidence: Arkansas (White v. State, 717 S.W.2d 78