State v. Amini

28 P.3d 1204, 175 Or. App. 370, 2001 Ore. App. LEXIS 1058

• Court: Court of Appeals of Oregon
• Decided: July 18, 2001
• Docket: 94-01-30513, A88710
• Status: Published

Opinions

EDMONDS, J.

Defendant appeals his conviction for two counts of aggravated murder, ORS 163.095(1), (2), attempted aggravated murder, ORS 163.095(3), and assault in the second degree with a firearm, ORS 163.175(4). In his only assignment of error, he argues that the giving of a jury instruction about the consequences of a verdict of “guilty except for insanity” violates his constitutional right to a fair trial under the Oregon and United States Constitutions. On appeal, this court initially reversed the convictions on the ground that the instruction violated defendant’s right to trial by an impartial jury under Article I, section 11, of the Oregon Constitution. State v. Amini, 154 Or App 589, 963 P2d 65 (1998). On review, the Supreme Court reversed, 331 Or 384, 15 P3d 541 (2000), and remanded the case for us to consider defendant’s challenge to the trial court’s instruction under the Sixth and Fourteenth Amendments to the United States Constitution. On remand, we affirm.

To set the stage for the discussion of defendant’s assignment of error under the federal constitution, we quote from the Supreme Court’s opinion:

“Defendant was charged with two counts of aggravated murder, one count of attempted aggravated murder, and one count of second-degree assault with a firearm. Those charges stemmed from the deaths of defendant’s wife and a foreign exchange student who resided with defendant’s wife, and gunshot injuries to another student who was visiting at the residence. At trial, defendant raised the affirmative defense of mental disease or defect constituting insanity. ORS 161.295; ORS 161.305.¹ ORS 161.313 provides that, when the issue of insanity under ORS 161.295 is submitted to the jury for determination, ‘the court shall instruct the jury in accordance with ORS 161.327.’ ORS 161.327, in turn, lists the circumstances under which a defendant may be placed in the jurisdiction of the Psychiatric Security Review Board (PSRB) for care and treatment after a verdict of guilty except for insanity.

“At defendant’s trial, the state asked the trial court to give Uniform Criminal Jury Instruction (UCrJI) 1122, which closely parallels the wording of ORS 161.327.² Defendant excepted, arguing that the mandate of ORS 161.313, combined with the jury instruction required by ORS 161.327, unconstitutionally suggested to the jury that it should and could consider the consequences of a guilty-except-for-insanity verdict in its deliberations. The trial court overruled defendant’s objection and gave UCrJI 1122. The court also instructed the jury not to consider what sentence the court might impose if defendant were found guilty. The jury subsequently found defendant guilty.” Amini, 331 Or at 386-88.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee defendant the right to a fair trial. The Sixth Amendment provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The Fourteenth Amendment makes the Sixth Amendment applicable to the states and provides, in part:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law[.]”

Defendant contends that his fundamental right to a fair trial includes a right to elect whether the statutorily mandated instruction about the consequences of the jury verdict of “guilty except for insanity” should be given. He asserts that,

“[t]o the extent that an instruction under ORS 161.313 is distracting and extraneous to the chief function of jurors on the issue, the procedure it compels is fundamentally unfair to a defendant who should be entitled to expect a decision on the relevant facts rather than an outcome-focused examination of the facts.”

Although defendant does not label it as such, his argument constitutes a facial challenge to ORS 161.313 that requires a jury to be instructed about the consequences of a “guilty except for insanity” verdict. Thus, our inquiry is whether the statute’s requirements, when complied with, necessarily prevent a defendant from having a fair trial.

We model our analysis after the course of reasoning in Duncan v. Louisiana, 391 US 145, 88 S Ct 1444, 20 L Ed 2d 491 (1968), which requires us to (1) identify the right in question, (2) determine whether that right is fundamental, and then, if it is fundamental, (3) decide whether the challenged procedure that the trial court employed necessarily prevented the realization of the fundamental right. Duncan, 391 US at 495-97 (using that methodology to evaluate the constitutionality of a limitation on the right to trial by jury); see also Victor v. Nebraska, 511 US 1, 114 S Ct 1239, 127 L Ed 2d 583 (1994) (using the same analysis to evaluate the constitutional implications of a jury instruction on “reasonable doubt”).

More to the point, the same kind of analysis has been used by the United States Supreme Court in regard to a jury instruction authorized by an Oregon statute. In Cupp v. Naughten, 414 US 141, 94 S Ct 396, 38 L Ed 2d 368 (1973), the defendant was tried for armed robbery. He chose not to testify, and most of the evidence against him was presented in the form of the testimony of witnesses to his alleged criminal activity. The state requested, and the trial court gave, a jury instruction stating that the jury could presume the truthfulness of the witnesses who testified against the defendant, unless the witnesses were otherwise found to be untruthful. The instruction was proper under the Oregon statute. However, the defendant asserted that the instruction violated federal constitutional guarantees in two particulars: the right to have the jury determine credibility and the right to have the state prove every element of the crime beyond a reasonable doubt. The Court identified the right as the fundamental right to have the prosecution prove guilt beyond a reasonable doubt. It referred to the historical analysis of that right, an analysis that the court had recently undertaken in In re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970), in which it had concluded that such a right was fundamental. Cupp, 414 US at 147. The Court characterized the issue as whether the instruction “so infected the entire trial that the resulting conviction violates due process.” Id. While reaffirming its holding in In re Winship, the Court concluded that the instruction in Cupp did not shift the burden of proving innocence to the defendant. The Court explained:

“The well-recognized and long-established function of the trial judge to assist the jury [in its deliberations] by such instructions is not emasculated by such abstract and conjectural emanations from Winship.

“It must be remembered that ‘review by this Court of state action expressing its notion of what will best further its own security in the administration of criminal justice demands appropriate respect for the deliberative judgment of a state in so basic ah exercise of its jurisdiction.’

“The jury here was charged fully and explicitly about the presumption of innocence and the State’s duty to prove guilt beyond a reasonable doubt. Whatever tangential undercutting of these clearly stated propositions may, as a theoretical matter, have resulted from the giving of the instruction on the presumption of truthfulness is not of constitutional dimension. The giving of that instruction, whether judged in terms of the reasonable-doubt requirement in In re Winship, supra, or of offense against ‘some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ did not render the conviction constitutionally invalid.” Cupp, 414 US at 149-50 (citations omitted).

Following the same analytical framework, we turn to the analysis in this case. The right in question is the constitutional guarantee of a fair trial. Without a doubt, such a right is fundamental to our system of justice. The question, then, becomes whether the giving of an instruction that tells the jury about the consequences of one of the three potential verdicts necessarily made defendant’s trial and his subsequent conviction constitutionally infirm.

As an initial matter, there is a well-established deference in the United States Supreme Court decisions to legislative determinations by states about criminal prosecutions. As stated in Patterson v. New York, 432 US 197, 201-02, 97 S Ct 2319, 53 L Ed 2d 281 (1977):

“It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally ‘within the power of the State to regulate procedures under which its laws are carried out,’ * * * and its decision in this regard 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.’ ” (Citations omitted.)

In Medina v. California, 505 US 437, 445-46, 112 S Ct 2572, 120 L Ed 2d 353, 363 (1992), the Court explained:

“As Patterson suggests, because the States have considerable expertise in matters of criminal procedure and the criminal process is grounded in centuries of common-law tradition, it is appropriate to exercise substantial deference to legislative judgments in this area.”

Therefore,

“[n]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes ‘a failure to observe that fundamental fairness essential to the very concept of justice.’ ” Donnelly v. De Christoforo, 416 US 637, 642, 94 S Ct 1868, 40 L Ed 2d 431 (1974).

Consequently,

“[jjudges are not free in defining ‘due process’ to impose on law enforcement officials [their] ‘personal and private notions’ of fairness and to ‘disregard the limits that bind judges in their judicial function.’ * * * [They] are to determine only whether the action complained of * * * violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’ and which define the ‘community’s sense of fair play and decency.’ ” Dowling v. United States, 493 US 342, 353, 110 S Ct 668, 107 L Ed 2d 708 (1990), quoting United States v. Lovasco, 431 US 783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977) (citations omitted).

With regard to jury instructions in criminal cases, the Supreme Court has further explained:

“The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process’, not merely whether the ‘instruction is undesirable, erroneous, or even universally condemned[.]’ ” Henderson v. Kibbe, 431 US 145, 154 97 S Ct 1730, 52 L Ed 2d 203 (1977), quoting Cupp, 414 US at 146-147 (footnote omitted).

Also,

“[a] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. While this does not mean that an instruction by itself may never rise to the level of constitutional error, it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.” Cupp, 414 US at 146-47.

With those admonitions in mind, we turn to our analysis of whether the instruction given by the trial court prevented the realization of defendant’s fundamental right to a fair trial. In Medina, the United States Supreme Court established an analytical framework that we adopt in evaluating whether the jury instruction requirement of ORS 161.327 is a permissible legislative choice. First, as the Medina Court instructed, we must inquire whether the practice that was employed has historically been proscribed, or, in the alternative, whether the practice that defendant would have preferred is a historically mandated process. In Medina, the historical analysis swept far back into the 18th century, including precedent from the early English common law. 505 US at 446-48. Similarly, the Court in other cases has looked at least to the early 19th century and has used the law as of the dates of enactment of the Sixth and Fourteenth Amendments to discern whether the decisional law shows that the drafters contemplated a right to a certain procedure or practice. See, e.g., Patterson, 432 US at 202 nn 7 and 8. The reason for such an examination is evident. The appropriate question is whether the drafters of those amendments contemplated that they were encompassing a right to prevent the giving of a consequences instruction within the right to a fair trial, or would they have believed that such a matter was one committed to the legislative bodies of the individual states. We have been unable to find any historical basis that suggests that the drafters contemplated such a right, and neither defendant nor the dissent offer plausible historical evidence to the contrary.

In the absence of a historical basis for concluding that the instruction violates a fundamental right to a fair trial, “we turn to consider whether giving the instruction transgresses any recognized principle of ‘fundamental fairness’ in operation.” Medina, 505 US at 448. The recognized principles of fundamental fairness, aside from those enumerated in the Bill of Rights, are narrow in scope. Dowling, 493 US at 352. They concern matters that are basic to our conception of justice and that define the community sense of fair play, so that a failure to protect the principles in any given case would necessarily deprive a defendant of a fair trial. Id. at 353; see also United States v. Valenzuela-Bernal, 458 US 858, 872, 102 S Ct 3440, 73 L Ed 2d 1193 (1982). They are also the sorts of principles about which there can be no reasonable disagreement. If the right not to have the jury consider the consequences of its “guilty except for insanity” verdict does not fall within the above-described class, then we must conclude that it is a part of the criminal law that has been left to the states’ legislative judgment.

The issue raised by the instruction in this case does not implicate any of the previously recognized principles of fundamental fairness. The instruction did not alter the state’s burden of proof,³ it did not relieve the state of proving the material elements of its charge,⁴ and it did not impinge upon the presumption of innocence accorded to defendant.⁵ Moreover, it did not force the jury into an all-or-nothing choice that distorted the fact-finding process,⁶ it did not permit an adjudication based on information that defendant had no opportunity to rebut,⁷ nor did it require defendant to forgo a defense to the charge that he might otherwise have had.

Of course, the above list is not exhaustive of all the principles that the right to a fair trial embodies. Thus, we consider as a final matter whether the statute requiring the giving of the instruction transgresses by implication any other recognized principle of “fundamental fairness” in its operation. Dowling, 394 US at 351. As the Court inquired in Duncan, is there at stake here some historical principle of justice so rooted in the traditions and conscience of our people that it is “essential for preventing miscarriages of justice and for insuring that fair trials are provided for all defendants[?]” 391 US at 158.

In that inquiry, we must be careful to distinguish between principles that are fundamental to the notion of a fair trial and other principles that may be rooted in the common law. In Snyder v. Massachusetts, 291 US 97, 107, 54 S Ct 330, 78 L Ed 674 (1934), overruled in part by Malloy v. Hogan, 378 US 1, 84 S Ct 1489, 12 L Ed 2d 653 (1964), the Supreme Court said:

“Confusion of thought will result if we fail to make the distinction between requirements * * * that have their source in the common law, and requirements that have their source, either expressly or by implication, in the federal constitution.”

It does not necessarily follow that because a legal principle existed at common law, it is the kind of principle that the community would have considered fundamental to a fair trial at the time of the adoption of the constitution. As the Supreme Court said in Gannett Co. v. DePasquale, 443 US 368, 384, 99 S Ct 2898, 61 L Ed 2d 608 (1979), regarding the public’s right to attend a pretrial hearing:

“In arguing that members of the general public have a constitutional right to attend a criminal trial, despite the obvious lack of support for such a right in the structure or text of the Sixth Amendment, the petitioner and amici rely on the history of the public-trial guarantee. This history, however, ultimately demonstrates no more than the existence of a common-law rule of open civil and criminal proceedings.

“Not many common-law rules have been elevated to the status of constitutional rights. The provisions of our Constitution do reflect an incorporation of certain few common-law rules and a rejection of others. The common-law right to a jury trial, for example, is explicitly embodied in the Sixth and Seventh Amendments. The common-law rule that looked upon jurors as interested parties who could give evidence against a defendant was explicitly rejected by the Sixth Amendment provision that defendant is entitled to be tried by an ‘impartial jury.’ But the vast majority of common-law rules were neither made part of the Constitution nor explicitly rejected by it.”⁸ (Footnote omitted; emphasis added.)

With this background, we evaluate defendant’s assertion that the right to object to an insanity consequences instruction is included implicitly within the fundamental right to a fair trial. There is no case in any jurisdiction that has so held. The best evidence that such a right reflects a principle of fundamental justice rooted in the traditions and conscience of our people is that some jurisdictions embrace it as part of their common law. See Boykins v. Wainwright, 737 F2d 1539 (11th Cir 1984), cert den 470 US 1059 (1985); Bassik v. Scully, 588 F Supp 895 (EDNY 1984); Campbell v. Bates, 416 F Supp 1111 (D Mass 1976). But most important to our analysis, there is a competing view that such an instruction acts as a safeguard to a fair trial that is reasonable in our opinion. See Lyles v. United States, 254 F2d 725 (DC Cir 1957), overruled in part by U.S. v. Brawner, 471F 2d 969 (DC Cir 1972); Commonwealth v. Mutina, 366 Mass 810, 323 NE2d 294 (Mass 1975); State v. Shickles, 760 P2d 291 (Utah 1988), abrogated by State v. Doporto, 935 P2d 484 (Utah 1997), and the cases cited by the dissent. 175 Or App at 390 n 4 (Armstrong, J., dissenting). While it can reasonably be argued that such an instruction is detrimental to a defendant because it causes the jury to focus on the consequence of a “not guilty by reason of insanity” verdict rather than on the facts surrounding guilt or innocence, it can also be reasonably argued that such an instruction promotes a fair trial because it overcomes the fear that such a verdict would result in the release of a dangerous person back into society. Indeed, it is difficult to reason that the right to object to an insanity verdict consequences instruction would have been implicitly contemplated as part of the community sense of a fair trial when reasonable people could disagree as to whether such an instruction promotes a fair trial. Accordingly, we are led by that observation to reject defendant’s argument that the right to object to such an instruction is embodied in the Sixth and Fourteenth Amendments.

The dissent reasons otherwise. It begins with the general principle that a jury should reach its verdict based on the facts of the case and the applicable law without being influenced by the consequences of its verdict. It then relies on statements from State v. Wall, 78 Or App 81, 84, 715 P2d 96, rev den 301 Or 241 (1986), and Shannon v. United States, 512 US 573, 114 S Ct 2419, 129 L Ed 2d 459 (1994), to transform that general common-law principle into a specific rule of constitutional proportions regarding instructions that explain the consequences of a verdict of “guilty except for insanity.” In doing so, it ignores the deference to legislative determinations about criminal prosecutions accorded to the states by the United States Supreme Court in its interpretations of the Due Process Clause. Second, it fails to acknowledge that even unanimously held principles of common law do not necessarily equate to principles of constitutional fairness. In Cupp, 414 US at 146, the Supreme Court explained:

“[Ejven substantial unanimity among federal courts of appeals that the instruction in question ought not to be given in United States district courts within their respective jurisdictions is not, without more, authority for declaring that the giving of the instruction makes a resulting conviction invalid under the Fourteenth Amendment.”

Also, the dissent discounts the guidelines in the Supreme Court’s decisions deciding similar arguments that undercut its position. One additional general observation about the dissent’s analysis: that the dissent may disagree with the decisions of some jurisdictions permitting a jury to be instructed about the consequences of an insanity verdict over a defendant’s objection does not detract from the reality that there is split authority in the common law on the issue.

Having no historical support for its position, the dissent is left to create a constitutional right by using Shannon as a springboard.⁹ In that case, the defendant raised an insanity defense and asked the court to instruct the jury that he would be involuntarily committed if the jury returned a verdict of “not guilty only by reason of insanity.” The trial court refused to give the instruction, and the defendant was convicted. Before the Supreme Court, the defendant argued that such an instruction was required when requested under the federal Insanity Defense Reform Act of 1984 and as a matter of general federal criminal practice. The Court rejected both arguments. In that context, the Court said that

“[i]t is well-established that when a jury has no sentencing function, it should be admonished to ‘reach its verdict without regard to what sentence might be imposed.’ The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task. Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their fact-finding responsibilities, and creates a strong possibility of confusion.” Shannon, 512 US at 579 (citations omitted).

From the above language, the dissent concludes that the Shannon court characterizes the principle that a jury should reach its verdict based on the facts of the case and the applicable law and not on the consequences of its verdict “as fundamental” to a fair trial. 175 Or App at 395 (Armstrong, J., dissenting). The problem with that conclusion is that the Shannon Court was not concerned with the Sixth Amendment right to a fair trial because the defendant did not make that argument. The “well established” principle that the Court refers to in Shannon is a general common-law principle.¹⁰ Moreover, the defendant in Shannon assigned error to the failure to give the kind of instruction that defendant urges deprived him of a fair trial in this case, once again demonstrating how reasonable minds can differ on the benefits of such an instruction. Finally, the general principle that a jury should reach its verdict without regard to what sentence might be imposed was honored in this case by the giving of another instruction telling the jury to disregard the consequences in reaching its verdict.¹¹

As we pointed out earlier, recognized principles of fundamental fairness are principles that define the community’s sense of fair play and about which there can be no reasonable disagreement; that is a subject that the Shannon Court never purports to discuss. In our view, the dissent’s construct cannot withstand scrutiny under the Medina tests for that reason. Rather, the issue in this case resembles the issue considered by the Supreme Court in Martin v. Ohio, 480 US 228, 107 S Ct 1098, 94 L Ed 2d 267 (1987). In Martin, the Court specifically rejected the argument that an Ohio statute violated due process because it placed the burden of proving self-defense on the defendant who was charged with aggravated murder. At common law, the rule was that self-defense was an affirmative defense for the defendant to prove. That was the rule when the Fifth Amendment was adopted and when the Fourteenth Amendment was ratified. By the time that Martin had reached the Supreme Court, all but two states had abandoned the common-law rule and required the prosecution to prove the absence of self-defense. Nonetheless, the Court upheld the constitutionality of the Ohio statute that was contrary to the current trend in the law. Rejecting the argument that the Ohio statute violated due process, the Court observed,

“[w]e are aware that all but two of the States, Ohio and South Carolina, have abandoned the common-law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant. But the question remains whether those States are in violation of the Constitution; and, as we observed in Patterson, that question is not answered by cataloging the practices of other States.” Martin, 480 US at 236.¹² (Emphasis added.)

Similarly to Martin, the issue in this case involves a statute that is in conflict with the common-law rule of some states, but the question of whether the instruction infringed upon the fairness of defendant’s trial is not answered by cataloging the practices of those states that agree with the dissent’s preference. In summary, we hold that defendant’s due process rights were not violated when the trial court gave UCrJI 1122 pursuant to ORS 161.313. We arrive at that conclusion because there is no evidence that the drafters of the Sixth and Fourteenth Amendments would have contemplated that the rule proposed by defendant was necessary to a fair trial. Nor are we persuaded that the right advocated by defendant is the kind of right that is so basic to the community sense of fairness that it would have been contemplated that the failure to protect that right in any given case necessarily would have deprived a defendant of a fair trial. We think that the law is clear that to hold that the state legislature could not enact constitutionally a statute like ORS 161.313 would “invite[ ] undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order.” Medina, 505 US at 443.

Affirmed.

1 ORS 161.295 provides:

“(1) A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

“(2) As used in chapter 743, Oregon Laws 1971, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.”

ORS 161.305 provides:

“Mental disease or defect constituting insanity under ORS 161.295 is an affirmative defense.”

2 UCrJI 1122 provides:

“If the defendant is found guilty except for insanity, the defendant is subject to the following dispositions:

“(1) By the court.

“(a) If the court determines that the defendant is presently affected by a mental disease or defect and presents a substantial danger to others requiring commitment to a state mental hospital, the court will order the defendant placed under the jurisdiction of the Psychiatric Security Review Board, and order the defendant committed to a state mental hospital pending further disposition by the Psychiatric Security Review Board.

“(b) If the court finds that the defendant is affected by mental disease or defect but either that it is in remission or that the defendant is not presently a substantial danger to others requiring commitment to a state mental hospital, the court will order the defendant placed under the jurisdiction of the Psychiatric Security Review Board and may order that the defendant be conditionally released. A defendant who is conditionally released is subject to such supervisory orders of the court as are in the best interests of justice, the protection of society, and the welfare of the defendant.

“(2) By the Psychiatric Security Review Board. The Psychiatric Security Review Board is a state agency that by statute has as its primary concern the protection of society. After the court places the defendant under the jurisdiction of the Psychiatric Security Review Board, the board will have jurisdiction over the defendant for a length of time equal to the maximum period of incarceration to which the defendant could have been sentenced had the defendant been found guilty of the charged crime.

“(a) If the board determines that the defendant continues to be affected by a mental disease or defect and presents a substantial danger to others and is not a proper subject for conditional release, the board will order the defendant committed to a state mental hospital for custody, care, and treatment.

“(b) The Psychiatric Security Review Board will order that the defendant be discharged from its jurisdiction if at its first hearing or at some later date the board determines that either

“(i) the defendant is no longer affected by mental disease or defect, or

“(ii) the defendant is still affected by mental disease or defect but no longer presents a substantial danger to others.

“(c) If the board, either at its first hearing or at some later date, determines that the defendant is still affected by a mental disease or defect and is a substantial danger to others, but can be controlled adequately if conditionally released with treatment as a condition of release, the board will order the defendant to be conditionally released. A defendant who is conditionally released is subject to such supervisory orders of the board as are in the best interest of justice, the protection of society, and the welfare of the person.

“A person is considered to have a mental disease or defect requiring supervision even when that disease or defect is in a state of remission when the disease may, with reasonable medical probability, occasionally become active and render the person a danger to others.”

3 See Victor v. Nebraska, 511 US 1, 114 S Ct 1239, 127 L Ed 2d 583 (1994); see also Carella v. California, 491 US 263, 109 S Ct 2419, 105 L Ed 2d 218 (1989).

4 See Osborne v. Ohio, 495 US 103, 110 S Ct 1691, 109 L Ed 2d 98 (1990).

5 See Sandstrom v. Montana, 442 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979); see also Cupp, 414 US at 141.

6 See Beck v. Alabama, 447 US 625, 100 S Ct 2382, 65 L Ed 2d 392 (1980) (holding that the failure to consider lesser-included offenses violates due process). See also Schad v. Arizona, 501 US 624, 111 S Ct 2491, 115 L Ed 2d 555 (1991) (distinguishing Beck when the fact-finding process is not distorted and there is no risk that the jury will convict to avoid setting the defendant free).

7 In Simmons v. South Carolina, 512 US 154, 114 S Ct 2187, 129 L Ed 2d 133 (1994), the Court held that where a premise for the imposition of the death penalty is future dangerousness, the jury was entitled to know that petitioner could be denied release on parole because otherwise, the omission of such information created a false choice between sentencing defendant to death and sentencing him to life imprisonment.

8 The distinction between a fundamental principle essential to the constitutional right to a fair trial and a common-law rule is the necessary predicate to understanding the difference between the positions of the majority and the dissent in this case. In general, the concepts have different origins. Constitutional principles flow from the grant of authority from the people to the federal government. They stand as unalterable principles around which other rules of law are created. In contrast, common-law rules represent practices or rules adopted by courts over a period of time that reflect evolving views of fairness. Common-law rules are flexible and are often driven by competing views that balance tactical advantages and disadvantages. Where that balance lies may vary from one jurisdiction to another. Thus a state’s criminal procedure “does not run afoul of the Fourteenth Amendment because another method may seem to [the court’s] thinking to be fairer or wiser or give a surer promise of protection to the prisoner at the bar.” Snyder, 291 US at 105. “The Due Process Clause does not, however, require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused.” Medina, 505 US at 451.

9 The dissent also finds support for its rationale in a statement in Honda Motor Co. v. Oberg, 512 US 415, 430, 114 S Ct 2331, 129 L Ed 2d 336 (1994), that an abrogation of a well-established common law against the arbitrary deprivations of property raises a presumption of a due process violation. The dissent does not explain how a presumptive violation occurs when the common law is split on the issue.

10 The Shannon Court affirmed the defendant’s conviction; it did not hold it constitutionally infirm.

11 The trial court appeared later to have qualified that instruction. It could be argued that there was a conflict between the court’s giving of the consequences instruction, and its instruction to disregard the consequences of its verdict. Defendant does not assign error to any purported conflict between the instructions. In any case, the giving of conflicting, confusing or erroneous jury instructions is reviewed by an appellate court in its “supervisory role,” not in its role as an interpreter of the constitutional guarantees, and contradictory instructions can be struck down on grounds of sound judicial practice without finding that they violate constitutional rights. Cupp, 414 US at 146.

12 In Leland v. State of Oregon, 343 US 790, 72 S Ct 1002, 96 L Ed 1302 (1952), the Court upheld an Oregon statute against a due process challenge even though Oregon was the only state in the nation to require a defendant to prove the defense of insanity beyond a reasonable doubt.