518 U.S. 37116 S.Ct 2013135 L.Ed.2d 361
MONTANAv.EGELHOFFCertiorari to the Supreme Court of Montana.
No. 95-566.
Argued March 20, 1996
Decided June 13, 1996

Syllabus
On trial for two counts of deliberate homicide-defined by Montana law as  "purposely" or "knowingly" causing another's death-respondent claimed  that extreme intoxication had rendered him physically incapable of  committing the murders and accounted for his inability to recall the  events of the night in question. After being instructed, pursuant to  Mont. Code Ann. Section(s) 45-2-203, that respondent's "intoxicated  condition'' could not be considered ``in determining the existence of a  mental state which is an element of the offense," the jury found  respondent guilty. In reversing, the Supreme Court of Montana reasoned  that respondent had a right, under the Due Process Clause, to present and have the jury consider ``all relevant evidence'' to  rebut the State's evidence on all elements of the offense charged, and that evidence of his voluntary intoxication was ``clearly relevant'' to the  issue whether he acted knowingly and purposely.  Because Section(s)  45-2-203 prevented the jury from  considering that evidence, the court  concluded that the State had been relieved of part of its burden of  proof and that respondent had therefore been denied due process.
Held:  The judgment is reversed.
272 Mont. 114, 900 P. 2d 260, reversed.
Justice Scalia, joined by The Chief Justice, Justice Kennedy, and  Justice Thomas, concluded that Section(s) 45-2-203  does not violate the  Due Process Clause.  Pp. 3-19.
(a) The State Supreme Court's proposition that the Due Process Clause  guarantees the right to introduce all relevant evidence is indefensible.  See, e.g., Taylor v. Illinois, 484 U. S. 400, 410; Fed. Rule Evid. 403;  Fed. Rule Evid. 802.  The Clause does place limits upon restriction of  the right to introduce evidence, but only where the restriction  ``offends some principle of justice so rooted in the traditions and  conscience of our people as to be ranked as fundamental.''  See  Patterson v. New York, 432 U. S. 197, 201-202.  Respondent has failed to  meet the heavy burden of establishing that a defendant's right to have a  jury consider voluntary intoxication evidence in determining whether he  possesses the requisite mental state is a "fundamental principle of  justice."  The primary guide in making such a determination, historical  practice, gives respondent little support.  It was firmly established at  common law that a defendant's voluntary intoxication provided neither an  ``excuse'' nor a ``justification'' for his crimes; the common law's  stern rejection of inebriation as a defense must be understood as also precluding a defendant from arguing that, because of his intoxication,  he could not have possessed the mens rea necessary to commit the crime.  The justifications for this common-law rule persist to this day, and  have only been strengthened by modern research.  Although a rule  allowing a jury to consider evidence of a defendant's voluntary  intoxication where relevant to mens rea has gained considerable  acceptance since the 19th century, it is 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.  Pp. 3-13.
(b) None of this Court's cases on which the Supreme Court of Montana's  conclusion purportedly rested undermines the principle that a State can  limit the introduction of relevant evidence for a ``valid'' reason, as  Montana has.  The Due Process Clause does not bar States from making  changes in their criminal law that have the effect of making it easier  for the prosecution to obtain convictions.  See McMillan v.  Pennsylvania, 477 U. S. 79, 89, n. 5.  Pp. 14-19.
Justice Ginsburg concluded that Section(s) 45-2-203 should not be  categorized as simply an evidentiary rule.  Rather, Section(s) 45-2-203  embodies a legislative judgment regarding the circumstances under which  individuals may be held criminally responsible for their actions.  The  provision judges equally culpable a person who commits an act stone  sober, and one who engages in the same conduct after voluntary  intoxication has reduced the actor's capacity for self-control.  Comprehended as a measure redefining mens rea, Section(s) 45-2-203  encounters no constitutional shoal.  States have broad authority to  define the elements of criminal offenses in light of evolving  perceptions of the extent to which moral culpability should be a  prerequisite to conviction of a crime.  Defining mens rea to eliminate  the exculpatory value of voluntary intoxication does not offend a  fundamental principle of justice, given the lengthy common-law  tradition, and the adherence of a significant minority of the States to  that position today.  Pp. 1-5.
Scalia, J., announced the judgment of the Court and delivered an  opinion, in which Rehnquist, C. J., and Kennedy and Thomas, JJ., joined.  Ginsburg, J., filed an opinion concurring in the judgment.  O'Connor,  J., filed a dissenting opinion, in which Stevens, Souter, and Breyer,  JJ., joined.  Souter, J., filed a dissenting opinion.  Breyer, J., filed  a dissenting opinion, in which Stevens, J., joined.
NOTICE: This opinion is subject to formal revision before publication in  the preliminary print of the United States Reports.  Readers are  requested to notify the Reporter of Decisions, Supreme Court of the  United States, Washington, D.C. 20543, of any typographical or other  formal errors, in order that corrections may be made before the  preliminary print goes to press.
Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice  Thomas join.


1
We consider in this case whether the Due Process Clause is violated by Montana Code Annotated Section(s) 45-2-203, which provides,  in relevant part, that voluntary intoxication "may not be taken into  consideration in determining the existence of a mental state which is an  element of [a criminal] offense."

I.

2
In July 1992, while camping out in the Yaak region of northwestern Montana to pick mushrooms, respondent made friends with  Roberta Pavola and John Christenson, who were doing the same.  On  Sunday, July 12, the three sold the mushrooms they had collected and  spent the rest of the day and evening drinking, in bars and at a private  party in Troy, Montana.  Some time after 9 p.m., they left the party in  Christenson's 1974 Ford Galaxy station wagon.  The drinking binge  apparently continued, as respondent was seen buying beer at 9:20 p.m.  and recalled "sitting on a hill or a bank passing a bottle of Black  Velvet back and forth" with Christenson.  272 Mont. 114, 118, 900 P. 2d 260, 262 (1995).


3
At about midnight that night, officers of the Lincoln County, Montana, sheriff's department, responding to reports of a possible drunk  driver, discovered Christenson's station wagon  stuck in a ditch along U.  S. Highway 2.  In the front seat were  Pavola and Christenson, each dead  from a single gunshot to the head.  In the rear of the car lay  respondent, alive and yelling  obscenities. His blood-alcohol content  measured .36 percent over one hour later.  On the floor of the car, near  the brake pedal, lay respondent's .38 caliber handgun, with four loaded  rounds and two empty casings; respondent had gunshot residue on his  hands.


4
Respondent was charged with two counts of deliberate homicide, a  crime defined by Montana law as "purposely" or "knowingly" causing the  death of another human being.  Mont. Code Ann. Section(s) 45-5-102   (1995).  A portion of the jury charge, uncontested here, instructed that  "[a] person acts purposely when it is his conscious object to engage in  conduct of that nature or to cause such a result," and that "[a] person   acts knowingly when he is aware of his conduct or when he is aware under  the circumstances his conduct constitutes a crime; or, when he is aware  there exists the high probability that his  conduct will cause a specific  result."  App. to Pet. for Cert. 28a-29a. Respondent's defense at trial  was that an unidentified fourth person must have committed the murders;  his own extreme intoxication, he claimed, had rendered him physically  incapable of committing the murders, and accounted for his inability to recall the events of the night of July 12.  Although respondent was  allowed to make this use of the evidence that he was intoxicated, the  jury was instructed, pursuant to Mont. Code Ann. Section(s) 45-2-203   (1995), that it could not consider respondent's "intoxicated condition  . . . in determining the existence of a mental state which is an element  of the offense." App. to Pet. for Cert. 29a.  The jury found respondent  guilty on both counts, and the court sentenced him to 84 years' imprisonment.


5
The Supreme Court of Montana reversed.  It reasoned (1) that respondent "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," 272 Mont., at 125, 900 P. 2d, at 266,  and (2) that evidence of respondent's voluntary intoxication was  "clear[ly] . . . relevant to the issue of whether [respondent] acted  knowingly and purposely," id., at 122, 900 P. 2d, at 265.  Because  Section(s) 45-2-203 prevented the jury from considering that evidence  with regard to that issue, the court concluded that the State had been  "relieved of part of its burden to prove beyond a reasonable doubt every  fact necessary to constitute the crime charged," id., at 124, 900 P. 2d,  at 266, and that respondent had therefore been denied due process.  We  granted certiorari. 516 U. S. ___ (1995).

II.

6
The cornerstone of the Montana Supreme Court's judgment was the  proposition that the Due Process Clause guarantees a defendant the 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."  272  Mont., at 125, 900 P. 2d, at 266 (emphasis added).  Respondent does not  defend this categorical rule; he acknowledges that the right to present relevant evidence "has not been viewed as absolute."  Brief for Respondent 31.  That is a wise concession, since the proposition that  the Due Process Clause guarantees the right to introduce all relevant  evidence is simply indefensible.  As we have said:  "The accused does not  have an unfettered right to offer [evidence] that is incompetent,  privileged, or otherwise inadmissible under standard rules of evidence."  Taylor v. Illinois, 484 U. S. 400, 410 (1988).  Relevant evidence may,  for example, be excluded on account of a defendant's failure to comply  with procedural requirements.  See Michigan v. Lucas, 500 U. S. 145, 151   (1991). And any number of familiar and unquestionably constitutional evidentiary rules also authorize the exclusion of relevant evidence. For  example, Federal (and Montana) Rule of Evidence 403 provides: "Although relevant, evidence may be excluded if its probative value is  substantially outweighed by the danger of unfair prejudice, confusion of  the issues, or misleading the jury, or by considerations of undue delay,  waste of time, or needless presentation of cumulative evidence"   (emphasis added). Hearsay rules, see Fed. Rule Evid. 802, similarly  prohibit the introduction of testimony which, though unquestionably  relevant, is deemed insufficiently reliable.1  Of course, to say that  the right to introduce relevant evidence is not absolute is not to say that the Due Process Clause places no limits upon restriction of that  right.  But it is to say that the defendant asserting such a limit must   sustain the usual heavy burden that a due process claim entails:


7
"[P]reventing and dealing with crime is much more the      business  of the States than it is of the Federal Government,      and . . . 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.'"   Patterson v. New York, 432      U. S. 197, 201-202 (1977) (citations  omitted).


8
See also Cooper v. Oklahoma, 517 U. S. ___, ___ (1996) (slip op., at 6) (applying Patterson test); Marshall v. Lonberger, 459 U. S.  422, 438, n. 6 (1983) ("the Due Process Clause does not permit the  federal courts to engage in a finely tuned review of the wisdom of state  evidentiary rules").  Respondent's task, then, is to establish that a  defendant's 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." Our primary guide in  determining whether the principle in question is fundamental is,  of  course, historical practice.  See Medina v. California, 505 U. S. 437, 446 (1992).  Here that gives respondent little support.  By the laws of  England, wrote Hale, the intoxicated defendant "shall have no privilege  by this voluntarly contracted madness, but shall have the same judgment  as if he were in his right senses." 1 M. Hale, Pleas of the Crown  *32-33.  According to Blackstone and Coke, the law's condemnation of  those suffering from dementia affectata was harsher still: Blackstone,  citing Coke, explained that the law viewed intoxication "as an  aggravation of the offence, rather than an excuse for any criminal  misbehaviour."  4 W. Blackstone, Commentaries *25-26.   This stern  rejection of inebriation as a defense became a fixture of early American  law as well.  The American editors of  the 1847 edition of Hale wrote:


9
"Drunkenness, it was said in an early case, can never be      received as a ground to excuse or palliate an offence: this      is not  merely the opinion of a speculative philosopher, the      argument of  counsel, or the obiter dictum of a single judge,      but it is a sound and  long established maxim of judicial      policy, from which perhaps a single  dissenting voice cannot      be found.  But if no other authority could be adduced, the      uniform decisions of our own Courts from the first      establishment of the government, would constitute it  now a      part of the  common law of the land."  Hale, supra, at *32,      n. 3.


10
In an opinion citing the foregoing passages from Blackstone and  Hale, Justice Story rejected an objection to the exclusion of evidence  of intoxication as follows:


11
"This is the first time, that I ever remember it to have      been  contended, that the commission of one crime was an      excuse for another.  Drunkenness is a gross vice, and in the      contemplation of some of our  laws is a crime; and I learned      in my earlier studies, that so far from  its being in law an      excuse for murder, it is rather an aggravation of  its      malignity."  United States v. Cornell, 25 F. Cas. 650,      657-658 (No.  14,868) (CC R. I. 1820).


12
The historical record does not leave room for the view that the  common law's rejection of intoxication as an "excuse" or "justification"  for crime would nonetheless permit the defendant to show that  intoxication prevented the requisite mens rea. Hale, Coke and  Blackstone were familiar, to say the least, with the concept of mens  rea, and acknowledged that drunkenness "deprive[s] men of the use of  reason," Hale, supra, at *32; see also Blackstone, supra, at *25.  It is  inconceivable that they did not realize that an offender's drunkenness  might impair his ability to form the requisite intent; and inconceivable  that their failure to note this massive exception from the general rule of disregard of intoxication was an oversight.  Hale's statement that a  drunken offender shall have the same judgment "as if he were in his  right senses" must be understood as precluding a defendant from arguing  that, because of his intoxication, he could not have possessed the mens  rea required  to commit the crime.  And the same must be said of the  exemplar  of the common-law rule cited by both Hale and Blackstone, see  Hale, supra, at *32; Blackstone, supra, at *26, n. w, which is Serjeant Pollard's argument to the King's Bench in Reniger v. Fogossa, 1 Plowd.  1, 19, 75 Eng. Rep. 1, 31 (K. B. 1550): "[I]f  a person that is drunk  kills another, this shall be Felony, and  he shall be hanged for it, and  yet he did it through Ignorance,  for when he was drunk he had no  Understanding nor Memory; but inasmuch as that Ignorance was occasioned  by his own Act and Folly, and he might have avoided it, he shall not be  privileged  thereby" (emphasis added).  See also Beverley's Case, 4 Co.  Rep. 123b, 125a, 76 Eng. Rep. 1118, 1123 (K.B. 1603) ("although he who  is drunk, is for the time non compos mentis, yet his drunkenness does  not extenuate his act or offence, nor turn to his avail") (emphasis  added) (footnote omitted).


13
Against this extensive evidence of a lengthy common-law tradition decidedly against him, the best argument available to respondent is the one made by his amicus and conceded by the State: Over  the course of the 19th century, courts carved out an exception to the  common law's traditional across-the-board condemnation of the drunken  offender, allowing a jury to consider a defendant's intoxication when  assessing whether he possessed the mental state needed to commit the  crime charged, where the crime was one requiring a "specific intent."  The emergence of this new rule is often traced to an 1819 English case,  in which Justice Holroyd is reported to have held that "though voluntary  drunkenness cannot excuse from the commission of crime, yet where, as on  a charge of murder, the material question is, whether an act was  premeditated or done only with sudden heat and impulse, the fact of the  party being intoxicated [is] a circumstance proper to be taken into  consideration."  1 W. Russell, Crimes and Misdemeanors *8 (citing King  v. Grindley, Worcester Sum. Assizes 1819, MS).  This exception was "slow  to take root," however, Hall, Intoxication and Criminal Responsibility,  57 Harv. L. Rev. 1045, 1049 (1944), even in England.  Indeed, in the  1835 case of King v. Carroll, 7 Car. & P. 145, 147, 173 Eng. Rep. 64, 65   (N. P.), Justice Park claimed that Holroyd had "retracted his opinion"  in Grindley, and said "there is no doubt that that case is not law."  In  this country, as late as 1858 the Missouri Supreme Court could speak as categorically as this:


14
"To look for deliberation and forethought in a man maddened      by  intoxication is vain, for drunkenness has deprived him of      the  deliberating faculties to a greater or less extent;  and      if this  deprivation is to relieve him of all responsibility      or to diminish it,  the great majority of crimes committed      will go unpunished.  This however  is not the doctrine of the      common law; and to its maxims, based as  they  obviously are      upon true wisdom and sound policy, we must adhere."  State      v. Cross, 27 Mo. 332, 338 (1858).


15
And as late as 1878, the Vermont Supreme Court upheld the giving  of the following instruction at a murder trial:


16
"`The voluntary intoxication of one who without provocation      commits a homicide, although amounting to a frenzy, that is,      although  the intoxication amounts to a frenzy, does not      excuse him from the same  construction of his conduct, and      the same legal inferences upon the  question of premeditation      and intent, as affecting the grade of his  crime, which are      applicable to a person entirely sober.'"  State v.  Tatro, 50      Vt. 483, 487 (1878).


17
See also Harris v. United States, 8 App. D. C. 20, 26-30 (1896);  Flanigan v. People, 86 N. Y. 554, 559-560 (1881); Commonwealth v.  Hawkins, 69 Mass. 463, 466 (1855); State v. McCants, 1 Spears 384,  391-395 (S. C. 1842).  Eventually, however, the new view won out, and by  the end of the 19th century, in most American jurisdictions,  intoxication could be considered in determining whether a defendant was  capable of forming the specific intent necessary to commit the crime charged.  See Hall, supra, at 1049; Hopt v. People, 104 U. S. 631, 633-634 (1882) (citing cases).


18
On the basis of this historical record, respondent's amicus argues that "[t]he old common-law rule . . . was no longer deeply rooted  at the time the Fourteenth Amendment was ratified."  Brief for National  Association of Criminal Defense Lawyers as Amicus Curiae 23.  That  conclusion is questionable, but we need  not pursue the point, since the  argument of amicus mistakes the nature of our inquiry.  It is not the  State which bears the burden of demonstrating that its rule is "deeply  rooted," but rather respondent who must show that the principle of  procedure violated by the rule (and allegedly required by due process)  is "`so rooted in the traditions and conscience of our people as to be  ranked as fundamental.'"  Patterson v. New York, 432 U. S., at 202.  Thus, even assuming that when the Fourteenth Amendment was adopted the  rule Montana now defends was no longer generally applied, this only cuts  off what might be called an a fortiori argument in favor of the State.  The burden remains upon respondent to show that the "new common law"  rule-that intoxication may be considered on the question of intent-was  so deeply rooted at the time of the Fourteenth Amendment (or perhaps has  become so deeply rooted since) as to be a fundamental principle which  that Amendment enshrined.


19
That showing has not been made.  Instead of the uniform and continuing acceptance we would expect for a rule that enjoys "fundamental principle" status, we find that fully one-fifth of the  States either never adopted the "new common-law" rule at issue here or  have recently abandoned it.2  Cf. Cooper v. Oklahoma, 516 U. S. ___   (1996) (finding due process violation in a rule having no common-law  pedigree whatever, and adopted, very recently, by only four states).  See also Martin v. Ohio, 480 U. S. 228, 236 (1987) ("We are aware that  all but two of the States . . . have abandoned the common-law rule . . .  .  But the question remains whether those [two] States are in violation  of the Constitution").


20
It is not surprising that many States have held fast to or resurrected the common-law rule prohibiting consideration of voluntary  intoxication in the determination of mens rea, because that rule has  considerable justification3-which alone casts doubt upon the  proposition that the opposite rule is a "fundamental principle."  A  large number of crimes, especially violent crimes, are committed by  intoxicated offenders; modern studies put the numbers as high as half of  all homicides, for example.  See, e.g., Third Special Report to the U.  S. Congress on Alcohol and Health from the Secretary of Health,  Education, and Welfare 64 (1978); Note, Alcohol Abuse and the Law, 94  Harv. L. Rev. 1660, 1681-1682 (1981).  Disallowing consideration of voluntary intoxication has the effect of increasing the punishment for  all unlawful acts committed in that state, and thereby deters drunkenness or irresponsible behavior while drunk.  The rule also serves  as a specific deterrent, ensuring that those who prove incapable of  controlling violent impulses while voluntarily intoxicated go to prison.  And finally, the rule comports with and implements society's moral  perception that one who has voluntarily impaired his own faculties  should be responsible for the consequences.  See, e.g., McDaniel v.  State, 356 So. 2d 1151, 1160-1161 (Miss. 1978).4


21
There is, in modern times, even more justification for laws such  as Section(s) 45-2-203 than there used to be.  Some recent studies  suggest that the connection between drunkenness and crime is as much  cultural as pharmacological-that is, that drunks are violent not simply  because alcohol makes them that way, but because they are behaving in  accord with their learned  belief that drunks are violent.  See, e.g.,  Collins, Suggested Explanatory Frameworks to Clarify the Alcohol  Use/Violence Relationship, 15 Contemp. Drug Prob. 107, 115 (1988);  Critchlow, The Powers of John Barleycorn, 41 Am. Psychologist 751,  754-755 (July 1986).  This not only adds additional support to the traditional view that an intoxicated criminal is not deserving of exoneration, but it suggests that juries-who possess the same learned  belief as the intoxicated offender-will be too quick to accept the claim  that the defendant was biologically incapable of forming the requisite  mens rea.  Treating the matter as one of excluding misleading evidence  therefore makes some sense.5


22
In sum, not every widespread experiment with a procedural rule  favorable to criminal defendants establishes a fundamental principle of  justice.  Although the rule allowing a jury to consider evidence of a  defendant's voluntary intoxication where relevant to mens rea has gained  considerable acceptance, it is 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.6

III.

23
The Supreme Court of Montana's conclusion that Mont. Code Ann.  Section(s) 45-2-203 violates the Due Process Clause purported to rest on  two lines of our jurisprudence.  First, it derived its view that the Due  Process Clause requires the admission of all relevant evidence from the  statement in Chambers v. Mississippi, 410 U. S. 284, 294 (1973), that  "[t]he  right of an accused in a criminal trial to due process is, in  essence, the right to a fair opportunity to defend against the State's accusations."  Respondent relies heavily on this statement, which he  terms "the Chambers principle," Brief for Respondent 30.


24
We held in Chambers that "the exclusion of [certain] critical evidence, coupled with the State's refusal to permit [petitioner] to  cross-examine McDonald, denied him a trial in accord with traditional  and fundamental standards of due process."  410 U. S., at 302.  We  continued, however:


25
"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 302-303 (emphasis added).


26
In other words, Chambers was an exercise in highly case-specific  error correction.  At issue were two rulings by the state trial court at  Chambers' murder trial: denial of Chambers' motion to treat as an  adverse witness one McDonald, who had confessed to the murder for which  Chambers was on trial, but later retracted the confession; and  exclusion, on hearsay grounds, of testimony of three witnesses who would  testify that McDonald had confessed to them.  We held that both of these rulings were erroneous, the former because McDonald's testimony simply  was adverse, id., at 297-298, and the second because the statements  "were originally made and subsequently offered at trial under  circumstances that provided considerable assurance of their  reliability," id., at 300, and were "well within the basic rationale of  the exception for declarations against interest," id., at 302.  Thus,  the holding of Chambers-if one can be discerned from such a  fact-intensive case-is certainly not that a defendant is denied "a fair  opportunity to defend against the State's accusations" whenever  "critical evidence" favorable to him is excluded, but rather that  erroneous evidentiary rulings can, in combination, rise to the level of  a  due process violation.


27
Respondent cites our decision in Crane v. Kentucky, 476 U. S.  683 (1986), as evidence that his version of the "Chambers principle"  governs our jurisprudence.  He highlights statements in Crane to the  effect that "an essential component of procedural fairness is an  opportunity to be heard," which would  effectively be denied "if the  State were permitted to exclude competent, reliable evidence . . . when  such evidence is central to the defendant's claim of innocence."  Id.,  at 690; Brief for Respondent 31.  But the very next sentence of that  opinion (which respondent omits) makes perfectly clear that we were not   setting forth an absolute entitlement to introduce crucial, relevant evidence: "In the absence of any valid state justification, exclusion of  this kind of exculpatory evidence deprives a defendant of the basic  right to have the prosecutor's case encounter and survive the crucible  of meaningful adversarial testing."  476 U. S., at 690-691 (emphasis  added) (internal quotation marks omitted).  Our holding that the  exclusion of certain evidence in that case violated the defendant's constitutional rights rested not on a theory that all "competent, reliable evidence" must be admitted, but rather  on the ground that the  Supreme Court of Kentucky's sole rationale for the exclusion (that the  evidence "did not relate to the credibility of the confession," Crane v.  Commonwealth, 690 S. W. 2d 753, 755 (1985)) was wrong.  See 476 U. S.,  at 687.  Crane does nothing to undermine the principle that the  introduction of relevant evidence can be limited by the State for a  "valid" reason, as it has been by Montana.


28
The second line of our cases invoked by the Montana Supreme Court's opinion requires even less discussion.  In re Winship, 397 U. S.  358, 364 (1970), announced the proposition that the Due Process Clause  requires proof beyond a reasonable doubt of every fact necessary to  constitute the charged crime, and Sandstrom v. Montana, 442 U. S. 510,  524 (1979), established a corollary, that a jury instruction which  shifts to the defendant the burden of proof on a requisite element of  mental state violates due process.  These decisions simply are not  implicated here because, as the Montana court itself recognized, "[t]he  burden is not shifted" under Section(s) 45-2-203.  272 Mont., at  124,  900 P. 2d, at 266.  The trial judge instructed the jury that "[t]he State of Montana has the burden of proving the guilt of the Defendant  beyond a reasonable doubt," App. to Pet. for Cert. 27a, and that "[a]  person commits the offense of deliberate homicide if he purposely or  knowingly causes the death of another human being," id., at 28a.  Thus,  failure by the State to produce evidence of respondent's mental state  would have resulted in an acquittal.  That acquittal did not occur was  presumably attributable to the fact, noted by the Supreme Court of  Montana, that the State introduced considerable evidence from which the  jury might have concluded that respondent acted "purposely" or  "knowingly."  See 272 Mont., at 122, 900 P. 2d, at 265.  For example,  respondent himself testified that, several hours before the murders, he  had given his handgun to Pavola and asked her to put it in the glove  compartment of Christenson's car.  Ibid.; 5 Tr. 1123.  That he had to  retrieve the gun from the glove compartment before he used it was strong  evidence that it was his "conscious object" to commit the charged  crimes; as was the execution-style manner in which a single shot was  fired into the head of each victim.


29
Recognizing that Sandstrom is not directly on point, the Supreme  Court of Montana described Section(s) 45-2-203 as a burden-reducing,  rather than burdenshifting, statute.  272 Mont., at 122-123, 124, 900 P.  2d, at 265, 266. This obviously was not meant to suggest that the  statute formally reduced the burden of proof to clear-and-convincing, or  to a mere preponderance; there is utterly no basis for that, neither in  the text of the law nor in the jury instruction that was given.   What  the court evidently meant is that, by excluding a significant line of evidence that might refute mens rea, the statute made it easier for the  State to meet the requirement of  proving mens rea beyond a reasonable  doubt-reduced the burden in the sense of making the burden easier to  bear.  But any evidentiary rule can have that effect.  "Reducing" the  State's burden in this manner is not unconstitutional, unless the rule  of evidence itself violates a fundamental principle of fairness (which,  as discussed, this one does not).  We have "reject[ed] the view that  anything in the Due Process Clause bars States from making changes in  their criminal law that have the effect of making it easier for the  prosecution to obtain convictions."  McMillan v. Pennsylvania, 477 U. S.  79, 89, n. 5 (1986).


30
Finally, we may comment upon the Montana Supreme Court's citation of the following passage in Martin v. Ohio, 480 U. S. 228 (1987), a case upholding a state law that placed on the defendant the  burden of proving self-defense by a preponderance  of the evidence:


31
"It would be quite different 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, i.e., that  self-defense evidence must be put      aside for all purposes unless it  satisfied the preponderance      standard.  Such instruction would relieve  the State of its      burden and plainly run afoul of [In re] Winship's  mandate.      The instructions in this case . . . are adequate to convey to      the jury that all of the evidence,      including the evidence going to  self-defense, must be      considered in deciding whether there was a  reasonable doubt      about the sufficiency of the State's proof of the  elements      of the crime."  Id., at 233-234 (citation omitted); see also      272 Mont., at 122-123, 900 P. 2d, at 265.


32
This passage can be explained in various ways-e.g., as an assertion that the right to have a jury consider self-defense evidence   (unlike the right to have a jury consider evidence of voluntary  intoxication), is fundamental, a proposition that the historical record  may support.  But the only explanation needed for present purposes is  the one given in Kokkonen v. Guardian Life Ins. Co., 511 U. S. ___, ___   (1994) (slip op., at 4): "It is to the holdings of our cases, rather  than their dicta, that we must attend."  If the Martin dictum means that  the Due Process Clause requires all relevant evidence bearing on the  elements of a crime to be admissible, the decisions we have discussed  show it to be incorrect.


33
"The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a  constantly shifting adjustment of the tension between the evolving aims  of the criminal law and changing religious, moral, philosophical, and  medical views of the nature of man.  This process of adjustment has  always been thought to be the province of the States."  Powell v. Texas,  392 U. S. 514, 535-536 (1968) (plurality opinion).  The people of  Montana have decided to resurrect the rule of an earlier era,  disallowing consideration of voluntary intoxication when a defendant's  state of mind is at issue.  Nothing in the Due Process Clause prevents  them from doing so, and the judgment of the Supreme Court of Montana to  the contrary must be reversed.


34

It is so ordered.



35
djq  Justice Ginsburg, concurring in the judgment.


36
The Court divides in this case on a question of characterization.  The State's law, Mont. Code Ann. Section(s) 45-2-203   (1995), prescribes that voluntary intoxication "may not be taken into  consideration in determining the existence of  a mental state which is an  element of [a criminal] offense."  For measurement against federal  restraints on state action, how should we type that prescription?  If  Section(s) 45-2-203 is simply a rule designed to keep out "relevant,  exculpatory evidence," Justice O'Connor maintains, post, at 8, Montana's  law offends due process.  If it is, instead, a redefinition of the mental-state element of the offense, on the other hand, Justice O'Connor's due process concern "would not be at issue," post, at 12, for  "[a] state legislature certainly has the authority to identify the  elements of the offenses it wishes to punish," post, at 4, and to  exclude evidence irrelevant to the crime it has defined.


37
Beneath the labels (rule excluding evidence or redefinition of  the offense) lies the essential question: Can a State, without offense  to the Federal Constitution, make the judgment that two people are  equally culpable where one commits an act stone sober, and the other  engages in the same conduct after his voluntary intoxication has reduced  his capacity for self-control?  For the reasons that follow, I resist  categorizing Section(s) 45-2-203 as merely an evidentiary prescription,  but join the Court's judgment refusing to condemn the Montana statute as  an unconstitutional enactment.


38
Section 45-2-203 does not appear in the portion of Montana's Code containing evidentiary rules (Title 26), the expected placement of  a provision regulating solely the admissibility of evidence at trial.  Instead, Montana's intoxication statute appears in Title 45 ("Crimes"),  as part of a chapter entitled "General Principles of Liability."  Mont.  Code Ann., Tit. 45, ch. 2 (1995).  No less than adjacent provisions  governing duress and entrapment, Section(s) 45-2-203 embodies a  legislative judgment regarding the circumstances under which individuals  may be held criminally responsible for their actions.


39
As urged by Montana and its amici, Section(s) 45-2-203 "extract[s] the entire subject of voluntary intoxication from the mens  rea inquiry," Reply Brief for Petitioner 2, thereby rendering evidence  of voluntary intoxication logically irrelevant to proof of the requisite  mental state.  Thus, in a prosecution for deliberate homicide, the State  need not prove that the defendant "purposely or knowingly cause[d] the  death of another," Mont. Code Ann. Section(s) 45-5-102(a) (1995), in a  purely subjective sense.  To obtain a conviction, the prosecution must prove only that (1) the defendant caused the death of another with actual knowledge or purpose, or (2) that the defendant killed "under  circumstances that would otherwise establish knowledge or purpose `but  for' [the defendant's] voluntary intoxication." Brief for American  Alliance for Rights and Responsibilities et al. as Amici Curiae 6.  See  also Brief for Petitioner 35-36; Brief for United States as Amicus  Curiae 10-12. Accordingly, Section(s) 45-2-203 does not "lighte[n] the   prosecution's burden to prove [the] mental-state element beyond a  reasonable doubt," as Justice O'Connor suggests, post, at 4, for  "[t]he applicability of the reasonable-doubt standard . . . has always been  dependent on how a State defines the offense that is charged," Patterson  v. New York, 432 U. S. 197, 211, n. 12 (1977).


40
Comprehended as a measure redefining mens rea, Section(s) 45-2-203 encounters no constitutional shoal.  States enjoy wide latitude  in defining the elements of criminal offenses, see, e.g., Martin v.  Ohio, 480 U. S. 228, 232 (1987); Patterson, 432 U. S., at 201-202,  particularly when determining "the extent to which moral culpability  should be a prerequisite to conviction of a crime," Powell v. Texas, 392  U. S. 514, 545 (1968) (Black,  J., concurring).  When a State's power to  define criminal conduct is challenged under the Due Process Clause, we  inquire only whether the law "offends some principle of justice so  rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson, 432 U. S., at 202 (internal quotation marks  omitted). Defining mens rea to eliminate the exculpatory value of  voluntary intoxication does not offend a "fundamental principle of  justice," given the lengthy common-law tradition, and the adherence of a  significant minority of the States to that position today.  See ante, at  5-10; see also post, at 1 (Souter, J., dissenting) ("[A] State may so  define the mental element of an offense that evidence of a defendant's   voluntary intoxication at the time of commission does not have  exculpatory relevance and, to that extent, may be excluded without  raising any issue of due process.").


41
Other state courts have upheld statutes similar to Section(s) 45-2-203, not simply as evidentiary rules, but as legislative redefinitions of the mental-state element.  See State v. Souza, 72 Haw.  246, 249, 813 P. 2d 1384, 1386 (1991) ("legislature was entitled to  redefine the mens rea element of crimes and to exclude evidence of  voluntary intoxication to negate state of mind"); State v. Ramos, 133  Ariz. 4, 6, 648 P. 2d 119, 121 (1982) ("Perhaps the state of mind which  needs to be proven here is a watered down mens rea; however, this is the  prerogative of the legislature."); Commonwealth v. Rumsey, 309 Pa.  Super. 137, 139, 454 A. 2d 1121, 1122 (1983) (quoting Powell, 392 U. S.,  at 536 (plurality opinion)) ("Redefinition of the kind and quality of mental activity that constitutes the mens rea element of crimes is a  permissible part of the legislature's role in the `constantly shifting  adjustment between the evolving aims of the criminal law and changing  religious, moral, philosophical, and medical views of the nature  of  man.'").  Legislation of this order, if constitutional in Arizona,  Hawaii, and Pennsylvania, ought not be declared unconstitutional by this  Court when enacted in Montana.


42
If, as the plurality, Justice O'Connor, and Justice Souter agree, it is within the legislature's province to instruct courts to  treat a sober person and a voluntarily intoxicated person as equally  responsible for conduct-to place a voluntarily intoxicated person on a  level with a sober person-then the Montana law is no less tenable under  the Federal Constitution than are the laws, with no significant  difference in wording, upheld in sister States.7  The Montana Supreme  Court did not disagree with the courts of other States; it simply did  not undertake an analysis in line with the principle that legislative enactments plainly capable of a constitutional construction ordinarily  should be given that construction.  See Edward J. DeBartolo Corp. v.  Florida Gulf Coast Building & Construction Trades Council, 485 U. S.  568, 575 (1988); State v. Lilburn, 265 Mont. 258, 266, 875 P. 2d 1036,  1041 (1994).


43
The Montana Supreme Court's judgment, in sum, strikes down a statute whose text displays no constitutional infirmity.  If the Montana  court considered its analysis forced by this Court's precedent,8 it  is proper for this Court to say what prescriptions federal law leaves to  the States,9 and thereby dispel confusion to which we may have  contributed, and attendant state-court misperception.


44
djq  Justice O'Connor, with whom Justice Stevens, Justice Souter, and  Justice Breyer join, dissenting.


45
The Montana Supreme Court unanimously held that Mont. Code Ann.  Section(s) 45-2-203 (1995) violates due process.  I agree. Our cases  establish that due process sets an outer limit on the restrictions that  may be placed on a defendant's ability to raise an effective defense to  the State's accusations.  Here, to impede the defendant's ability to  throw doubt on the State's case, Montana has removed from the jury's  consideration a category of evidence relevant to determination of mental  state where that mental state is an essential element of the offense  that must be proved beyond a reasonable doubt.  Because this  disallowance eliminates evidence with which the defense might negate an essential element, the State's burden to prove its case is made correspondingly easier.  The justification for this disallowance is the  State's desire to increase the likelihood of conviction of a certain  class of defendants who might otherwise  be able to prove that they did  not satisfy a requisite element of the offense.  In my view, the  statute's effect on the criminal proceeding violates due process.

I.

46
This Court's cases establish that limitations placed on the accused's ability to present a fair and complete defense can, in some  circumstances, be severe enough to violate due process. "The right of  an accused in a criminal trial to due process is, in essence, the right  to a fair opportunity to defend against the State's accusations."  Chambers v. Mississippi, 410 U. S. 284, 294 (1973).  Applying our  precedent, the Montana Supreme Court held that keeping intoxication  evidence away from the jury, where such evidence was relevant to  establishment of the requisite mental state, violated the due process  right to present a defense, 272 Mont. 114, 123, 900 P. 2d 260, 265   (1995), and that the instruction pursuant to Section(s) 45-2-203  was not  harmless error, id., at 124, 900 P. 2d, at 266.  In rejecting the  Montana Supreme Court's conclusion, the Court emphasizes that "any  number of familiar and unquestionably constitutional evidentiary rules" permit exclusion of relevant evidence.  Ante, at 3.  It is true that a  defendant does not enjoy an absolute right to present evidence relevant  to his defense. See Crane v. Kentucky, 476 U. S. 683, 690-691 (1986).  But none of the "familiar" evidentiary rules operates as Montana's does.  The Montana statute places a blanket exclusion on a category of  evidence that would allow the accused to negate the offense's  mental-state element.  In so doing, it frees the prosecution, in the  face of such evidence, from having to prove  beyond a reasonable doubt  that the defendant nevertheless possessed the required mental state.  In my view, this combination of effects violates due process.


47
The proposition that due process requires a fair opportunity to  present a defense in a criminal prosecution is not new.  See id., at  690; California v. Trombetta, 467 U. S. 479, 485 (1984). In Chambers,  the defendant had been prevented from cross-examining a witness and from  presenting witnesses on his own behalf by operation of Mississippi's  "voucher" and hearsay rules.  The Court held that the application of  these evidentiary rules deprived the defendant of a fair trial. "[W]here constitutional rights directly affecting the ascertainment of guilt are  implicated, the hearsay rule may not be applied mechanistically to  defeat the ends of justice."  410 U. S., at 302.  The plurality's  characterization of Chambers as "case-specific error correction," ante,  at 14, cannot diminish its force as a prohibition on enforcement of  state evidentiary rules that lead, without sufficient justification, to  the establishment of guilt by suppression of evidence supporting the defendant's case.In Crane, a trial court had held that the defendant  could not introduce testimony bearing on the circumstances of his  confession, on the grounds that this information bore only on the  "voluntariness" of the confession, a matter already resolved.  We held  that by keeping such critical information from the jury this exclusion  "deprived petitioner of his fundamental constitutional right to a fair  opportunity to present a defense."  476 U. S., at 687.  The Court  emphasized that, while States have the power to exclude evidence  through evidentiary rules that serve the interests of fairness and reliability,  limitations on evidence may exceed the bounds of due process where such  limitations undermine a defendant's ability to present exculpatory  evidence without serving a valid  state justification.


48
In Washington v. Texas, 388 U. S. 14 (1967), the trial court refused to permit a defense witness to testify on the basis of Texas  statutes providing that persons charged or convicted as coparticipants  in the same crime could not testify for one another, although they could  testify for the State.  The Court held that the Constitution prohibited  a State from establishing rules to prevent whole categories of defense  witnesses from testifying out of a belief that such witnesses were untrustworthy.  Such action by the State detracted too severely and  arbitrarily from the defendant's right to call witnesses in his favor.


49
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. Meaningful adversarial  testing of the State's case requires that the defendant not be prevented  from raising an effective defense, which must include the right to  present relevant, probative evidence.  To be sure, the right to present  evidence is not limitless;  for example, it does not permit the  defendant to introduce any and all evidence he believes might work in  his favor, Crane, supra, at 690, nor does it generally invalidate the operation of testimonial privileges, Washington v. Texas, 388 U. S. 14,  23, n. 21 (1976).  Nevertheless, "an essential component of procedural  fairness is an opportunity to be heard.  That opportunity would be an  empty one if the State were permitted to exclude competent, reliable  evidence" that is essential to the accused's defense.  Crane, supra, 690   (citations omitted). Section 45-2-203 forestalls the defendant's  ability to raise an effective defense by placing a blanket exclusion on  the presentation of a type of evidence that directly negates an element  of the crime, and by doing so, it lightens the prosecution's burden to  prove that mental-state element beyond a reasonable doubt.


50
This latter effect is as important to the due process analysis  as the former.  A state legislature certainly has the authority to  identify the elements of the offenses it wishes to punish, but once its  laws are written, a defendant has the right to insist that the State  prove beyond a reasonable doubt every element of an offense charged.  See McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986);  Patterson v. New  York, 432 U. S. 197, 211, n. 12 (1977) ("The applicability of the  reasonable-doubt standard, however, has always been dependent on how a  State defines the offense that is charged").  "The Due Process Clause protects the accused against conviction except upon proof beyond a  reasonable doubt of every fact necessary to constitute the crime with  which he is charged."  In re Winship, 397 U. S. 358, 364 (1970);  Patterson, supra, at 210.  Because the Montana legislature has specified  that a person commits "deliberate homicide" only if he "purposely or  knowingly causes the death of another human being," Mont. Code Ann.  Section(s) 45-5-102(1)(a) (1995), the prosecution must prove the  existence of such mental state in order to convict.  That is, unless the  defendant is shown to have acted purposely or knowingly, he is not  guilty of the offense of deliberate homicide.  The Montana Supreme Court found that it was inconsistent with the legislature's requirement of the  mental state of "purposely" or "knowingly" to prevent the jury from  considering evidence of voluntary intoxication, where that category of  evidence was relevant to establishment of that mental-state element.  272 Mont., at 122-123, 900 P. 2d, at 265-266.


51
Where the defendant may introduce evidence to negate a subjective mental-state element, the prosecution must work to overcome  whatever doubts the defense has raised about the existence of the  required mental state.  On the other hand, if the defendant may not  introduce evidence that might create doubt in the factfinder's mind as  to whether that element was met, the prosecution will find its job so  much the easier. A subjective mental state is generally proved only  circumstantially.  If a jury may not consider the defendant's evidence  of his mental state, the jury may impute to the defendant the  culpability of a mental state he did not possess.


52
In Martin v. Ohio, 480 U. S. 228 (1987), the Court considered an  Ohio statute providing that a defendant bore the burden of proving, by a  preponderance of the evidence, an affirmative defense such as  self-defense.  We held that placing  that burden on the defendant did not  violate due process.  The Court noted in explanation that it would  nevertheless have been  error to instruct the jury "that self-defense  evidence could not be considered in determining whether there was a  reasonable doubt about the State's case" where Ohio's definition of the  intent element made self-defense evidence relevant to the State's burden.  Id., at 233-234.  "Such an instruction would relieve the State  of its burden and plainly run afoul of Winship's mandate." Id., at 234.  In other words, the State's right to shift the burden of proving an  affirmative defense did not include the power to prevent the defendant  from attempting to prove self-defense in an effort to cast doubt on the  State's case. Dictum  or not, this observation explained our reasoning  and is similarly applicable here, where the State has benefitted from the defendant's inability to make an argument which, if accepted, could  throw reasonable doubt on the State's proof.  The placement of the  burden of proof for affirmative defenses should not be confused with the  use of evidence to negate elements of the offense charged.


53
Crane noted, "In the absence of any valid state justification,  exclusion of this kind of exculpatory evidence [circumstances of  confession] deprives a defendant of the basic right to have the  prosecutor's case encounter and survive the crucible of meaningful  adversarial testing."  476 U. S., at 690-691 (internal quotation marks  omitted).  The State here had substantial proof of the defendant's  knowledge or purpose in committing these homicides, and might well have  prevailed even had the jury been permitted to consider the defendant's intoxication.  But as in Crane, the prosecution's case has been insulated from meaningful adversarial testing by the scale-tipping removal of the necessity to face a critical category of  defense evidence.


54
The Court ignores Crane's caution that the prosecution must be  put to a full test.  Rather, it invokes Crane to emphasize that  "introduction of relevant evidence can be limited by the State for a  `valid' reason, as it has been by Montana."  Ante, at 16.  The State's  brief to this Court enunciates a single reason: due to the well-known  risks related to voluntary intoxication, it seeks to prevent a  defendant's use of his own voluntary intoxication as basis for  exculpation.  Brief for Petitioner 12; 17-19.  That is, its interest is  to ensure that even a defendant who lacked the required mental-state  element-and is therefore not guilty-is nevertheless convicted of the  offense.  The Court elaborates, ante, at 10-12, on reasons why Montana  might wish to preclude exculpation on the basis of voluntary  intoxication, but these reasons-increased punishment and concomitant  deterrence for those who commit unlawful acts while drunk, and  implementation of society's moral perception that those who become drunk  should bear the consequences-merely  explain the State's purpose in trying to improve its likelihood  of winning convictions.  The final  justification proffered by the Court on Montana's behalf is that  Montana's rule perhaps prevents juries, who might be otherwise be  misled, from being "too quick to accept the claim that the [drunk]  defendant was biologically incapable of forming the requisite mens rea,"  ante, at 12.  But this proffered justification is inconsistent with Section(s) 45-2-203's exception for persons who are involuntarily intoxicated. That exception makes plain that Montana does not consider  intoxication evidence misleading-but rather considers it relevant-for  the determination of a person's capacity to form the requisite mental  state.


55
A State's placement of a significant limitation on the right to  defend against the State's accusations "requires that the competing  interest be closely examined."  Chambers, 410 U. S., at 295.  Montana  has specified that to prove guilt, the State must establish that the  defendant acted purposely or knowingly,  but has prohibited a category of  defendants from effectively disputing guilt through presentation of  evidence relevant to that essential element.  And the evidence is  indisputably relevant: The Montana Supreme Court held that evidence of  intoxication is relevant to proof of mental state, 272 Mont., at  122-123, 900 P. 2d, at 265, and furthermore, Section(s) 45-2-203's  exception for involuntary intoxication shows that the legislature does  consider intoxication relevant to mental state.  Montana has barred the defendant's use of a category of relevant, exculpatory evidence for the  express purpose of improving the State's likelihood of winning a  conviction against a certain type of defendant.  The plurality's  observation that all evidentiary rules that exclude exculpatory evidence  reduce the State's burden to prove its case, ante, at 17, is beside the  point.  The purpose of the familiar evidentiary rules is not to   alleviate the State's burden, but rather, to vindicate some other goal  or value-e.g., to ensure the reliability and competency of  evidence or  to encourage effective communications within certain relationships.  Such rules may or may not help the prosecution, and when they do help,  do so only incidentally.  While due process does not "ba[r] States from making changes . . . that have the effect of making it easier for the  prosecution to obtain convictions," McMillan v. Pennsylvania, 477 U. S.,  at 89, n. 5 (emphasis added), an evidentiary rule whose sole purpose is  to boost the State's likelihood of conviction distorts the adversary  process.  Cf. Washington, 388 U. S., at 25 (Harlan, J., concurring in  result).  Unlike Chambers and Washington, where the State at least  claimed that the evidence at issue was  unreliable, Montana does not  justify its rule on grounds such as that intoxication evidence is  unreliable, cumulative, privileged, or irrelevant.  The sole purpose for  this disallowance is to keep from the jury's consideration a category of  evidence that helps the defendant's case and weakens the government's  case.


56
The plurality brushes aside this Court's precedents as variously  fact-bound, irrelevant, and dicta.  I would afford more weight to  principles enunciated in our case law than is accorded in the Court's  opinion today.  It seems to me that a State may not first determine the  elements of the crime it wishes to punish, and then thwart the accused's  defense by categorically disallowing the very evidence that would prove  him innocent.

II.

57
The Court does, however, raise an important argument for the statute's validity: the disallowance, at common law, of consideration of  voluntary intoxication where a defendant's state of mind is at issue.  Because this disallowance was permitted at common law, the plurality  argues, its disallowance  by Montana cannot amount to a violation of a  "fundamental principle of justice."  Ante, at 5-13.


58
From 1551 until its shift in the 19th century, the common-law rule prevailed that a defendant could not use intoxication as an excuse  or justification for an offense, or, it must be assumed, to rebut  establishment of a requisite mental state.  "Early law was indifferent  to the defence of drunkenness because the theory of criminal liability  was then too crude and too undeveloped to admit of exceptions. . . . But  with the refinement in the theory of criminal liability . . . a  modification of the rigid old rule on the defence of drunkenness  was to  be expected."  Singh, History of the Defense of Drunkenness in English  Criminal Law, 49 L. Q. Rev. 528, 537 (1933) (footnote omitted).  As the  plurality concedes, that significant modification took place in the 19th century.  Courts acknowledged the fundamental incompatibility of a particular mental-state requirement on the one hand, and the disallowance of consideration of evidence that might defeat establishment of  that mental state on the other.  In the slow progress  typical of the common law, courts began to recognize that evidence of  intoxication was properly admissible for the purpose of ascertaining  whether a defendant had met the required mental-state element of the  offense charged.This recognition, courts believed, was consistent with  the common-law rule that voluntary intoxication did not excuse  commission of a crime; rather, an element of the crime, the requisite  mental state, was not satisfied and therefore the crime had not been  committed.  As one influential mid-19th century case explained,  "Drunkenness is no excuse for crime; yet, in that class of crimes and  offences which depend upon guilty knowledge, or the coolness and deliberation with which they shall have been perpetrated, to constitute  their commission . . . [drunkenness] should be submitted to the  consideration of the Jury"; for, where the crime required a particular  mental state, "it is proper to show  any state or condition of the person  that is adverse to the proper exercise of the mind" in order "[t]o  rebut" the mental state or "to enable the Jury to judge rightly of the  matter."  Pigman v. State, 14 Ohio 555, 556-557 (1846);  accord, Cline  v. State 43 Ohio St. 332, 334, 1 N. E. Rep. 22, 23 (1885) ("The rule is  well settled that intoxication is not a justification or an excuse for crime. . . . But in many cases evidence of intoxication is admissible  with a view to the question whether a crime has been committed; . . . As   [mental state], in such case, is of the essence of the offense, it is  possible that in proving intoxication you go far to prove that no  offense was committed").


59
Courts across the country agreed that where a subjective mental  state was an element of the crime to be proved, the defense must be  permitted to show, by reference to intoxication, the absence of that  element.  One court commented that it seemed "incontrovertible and to be  universally applicable" that "where the nature and essence of the crime  are made by law to depend upon the peculiar state and condition of the  criminal's mind at the time with reference to the act done, drunkenness  may be a proper subject for the consideration of the jury, not to excuse or mitigate the offence but to show that it was not committed." People  v. Robinson, 2 Park. Crim. 235, 306 (N.Y. Sup. Ct. 1855). See also Swan  v. State, 23 Tenn. 136, 141-142 (1843); State v. Donovan, 61 Iowa 369,  370-371, 16 N. W. 206, 206-207 (1883); Mooney v. State, 33 Ala. 419, 420   (1859); Aszman v. State, 123 Ind. 347, 24 N. E. 123 (1890) (citing  cases).


60
With similar reasoning, the Montana Supreme Court recognized the  incompatibility of a jury instruction pursuant to Section(s) 45-2-203 in  conjunction with the legislature's decision to require a mental state of  "purposely" or "knowingly" for deliberate homicide.  It held that  intoxication is relevant to formation of the requisite mental state.  Unless a defendant is proved beyond a reasonable doubt to have possessed  the requisite mental state, he did not commit the offense.  Elimination  of a critical category of defense evidence precludes a defendant from effectively rebutting the mental-state element, while simultaneously  shielding the State from the effort of proving the requisite mental  state in the face of negating evidence.  It was this effect on the  adversarial process that persuaded the Montana Supreme Court that the  disallowance was unconstitutional.


61
The Due Process Clause protects those "`principle[s] of justice  so rooted in the traditions and conscience of our people as to be ranked  as fundamental.'"  Patterson v. New York, 432 U. S., at 202 (citations  omitted).  At the time the Fourteenth Amendment was ratified, the  common-law rule on consideration of intoxication evidence was in flux.  The Court argues that rejection of the historical rule in the 19th  century simply does not establish that the "new common law" rule is a  principle of procedure so "deeply rooted" as to be ranked "fundamental."  Ante, at 7-9.  But to determine whether a fundamental principle of justice has been violated here, we cannot consider only the historical  disallowance of intoxication evidence, but must also consider the  "fundamental principle" that a defendant has a right to a fair  opportunity to put forward his defense, in adversarial testing where the  State must prove the elements of the offense beyond a reasonable doubt.  As concepts of mens rea and burden of proof developed, these principles  came into conflict, as the shift in the common law in the 19th century  reflects.

III.

62
Justice Ginsburg concurs in the Court's judgment based on her determination that Section(s) 45-2-203 amounts to a redefinition of the  offense that renders evidence of voluntary intoxication irrelevant to  proof of the requisite mental state.  The concurrence emphasizes that  States enjoy wide latitude in defining the elements of crimes and  concludes that, "[c]omprehended as a measure redefining mens rea,  Section(s) 45-2-203 encounters no constitutional shoal."  Ante, at 3.


63
A state legislature certainly possesses the authority to define  the offenses it wishes to punish.  If the Montana legislature chose to  redefine this offense so as to alter the requisite mental-state element,  the due process problem presented in this case would not be at issue.


64
There is, however, no indication that such a "redefinition" occurred. Justice Ginsburg's reading of Montana law is plainly inconsistent with that given by the Montana Supreme Court, and therefore  cannot provide a valid basis to uphold Section(s) 45-2-203's operation.  "We are, of course, bound to accept the interpretation of [state] law by  the highest court of the State." Hortonville Joint School Dist. No. 1  v. Hortonville Ed. Assn., 426 U. S. 482, 488 (1976); accord Groppi v.  Wisconsin, 400 U. S. 505, 507 (1971); Kingsley Int'l. Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684, 688 (1959).  The Montana Supreme Court held that evidence of voluntary intoxication was relevant  to the requisite mental state. 272 Mont., at 122, 900 P. 2d, at 265.  And in summing up the court's  holding, Justice Nelson's concurrence  explains that while the legislature may enact the statutes it chooses,  Section(s) 45-2-203 "effectively and impermissibly . . . lessens the  burden of the State to prove beyond a reasonable doubt an essential  element of the offense charged-the mental state element-by statutorily  precluding the jury from considering the very evidence that might  convince them that the State had not proven  that element."  Id., at 128,  900 P. 2d, at 268.  The Montana Supreme Court's decision cannot be read  consistently with a "redefinition" of the offense.


65
Because the management of criminal justice is within the province of the States, Patterson, 432 U. S., at 201-202, this Court is  properly reluctant to interfere in the States' authority in these  matters. Nevertheless, the Court must invalidate those rules that  violate the requirements of due process.  The Court acknowledges that a  reduction of the State's burden through disallowance of exculpatory  evidence is unconstitutional if it violates a principle of fairness.  Ante, at 17. I believe that such a violation is present here.  Montana's  disallowance of consideration of voluntary-intoxication evidence removes  too critical a category of relevant, exculpatory evidence from the adversarial process by prohibiting the defendant from making an essential argument and  permitting the prosecution to benefit from its  suppression. Montana's purpose is to increase the likelihood of  conviction of a certain class of defendants, who might otherwise be able  to prove that they did not satisfy a requisite element of the offense.  The historical fact that this disallowance once existed at common law is  not sufficient to save the statute today.  I would affirm the judgment  of the Montana Supreme Court.


66
Justice Souter, dissenting.


67
I have no doubt that a State may so define the mental element of  an offense that evidence of a defendant's voluntary intoxication at the  time of commission does not have exculpatory relevance and, to that  extent, may be excluded without raising any issue of due process.  I  would have thought the statute at issue here (Mont. Code Ann. Section(s)  45-2-203 (1995)) had implicitly accomplished such a redefinition, but I  read the opinion of the Supreme Court of Montana as indicating that it  had no such effect, and I am bound by the state court's statement of its  domestic law.


68
Even on the assumption that Montana's definitions of the purposeful and knowing culpable mental states were untouched by Section(s) 45-2-203, so that voluntary intoxication remains relevant to  each, it is not a foregone conclusion that our cases preclude the State  from declaring such intoxication evidence inadmissible.  A State may  typically exclude even relevant and exculpatory evidence if it presents  a valid justification for doing so.  There may (or may not) be a valid  justification to support a State's decision to exclude, rather than  render irrele-vant, evidence of a defendant's voluntary intoxication. Montana has not endeavored, however, to advance an argument to that  effect.  Rather, the State has effectively restricted itself to  advancing undoubtedly sound reasons for defining the mental state  element so as to make voluntary intoxication generally irrelevant   (though its own Supreme Court has apparently said the legislature failed  to do that) and to demonstrating that evidence of voluntary intoxication  was irrelevant at common law (a fact that goes part way, but not all  the  way, to answering the due process objection).  In short, I read the  State Supreme Court opinion as barring one interpretation that would  leave the statutory scheme constitutional, while the State's failure to offer a justification for excluding relevant evidence leaves us unable  to discern whether there may be a valid reason to support the statute as  the State Supreme Court appears to view it.  I therefore respectfully  dissent from the Court's judgment.

I.

69
The plurality opinion convincingly demonstrates that when the Fourteenth Amendment's Due Process Clause was added to the Constitution  in 1868, the common law as it then stood either rejected the notion that  voluntary intoxication might be exculpatory, ante, at 5-7, or was at  best in a state of flux on that issue.  See also ante, at 9-11   (O'Connor, J., dissenting). That is enough to show that Montana's rule  that evidence of voluntary intoxication is inadmissible on the issue of  culpable mental state contravenes no principle "`so rooted in the traditions and conscience of our people,'" as they stood in 1868, "`as  to be ranked as fundamental,'" ante, at 9 (quoting Patterson v. New  York, 432 U. S. 197, 202 (1977)).  But this is  not the end of the due  process enquiry.  Justice Harlan's dissenting opinion in Poe v. Ullman,  367 U. S. 497, 542 (1961),  teaches that the "tradition" to which we are  tethered "is a living thing."10  What the historical practice does  not rule out as inconsistent with "the concept of ordered liberty,"  Palko v. Connecticut, 302 U. S. 319, 325 (1937), must still pass muster as rational in today's world.  Cf. Medina v. California, 505 U. S. 437,  454 (1992) (O'Connor, J., concurring in judgment) (although "historical  pedigree can give a procedural practice a presumption of  constitutionality . . ., the presumption must surely be rebuttable").


70
In this case, the second step of the due process enquiry leads  to a line of precedent discussed in Justice O'Connor's dissent, ante, at  2-9, involving the right to present a defense. See, e.g., Washington v.  Texas, 388 U. S. 14, 22 (1967) (a State cannot arbitrarily bar "whole  categories of defense witnesses from testifying"); id., at 25 (Harlan,  J., concurring in result) (State may not "recogniz[e] [testimony as]  relevant and competent [but] arbitrarily ba[r] its use by the  defendant"); Chambers v. Mississippi, 410 U. S. 284, 294 (1973)  (defendant entitled to a "fair opportunity to defend against the State's  accusations"); Crane v. Kentucky, 476 U. S. 683, 690 (1986) (States may  not exclude "competent, reliable evidence" that is "central to the defendant's claim of innocence" absent an adequate justification). Collectively, these cases stand for the proposition, as the Court put it  in Chambers, supra, at 295, that while the right to present relevant  evidence may be limited, the Constitution "requires that the competing  interest  [said to justify the limitation] be closely examined."

II.

71
Given the foregoing line of authority, Montana had at least one  way to give effect to its judgment that defendants should not be  permitted to use evidence of their voluntary intoxication to defeat  proof of culpable mental state, and perhaps a second. First, it could  have defined culpable mental state so as to give voluntary intoxication  no exculpatory relevance.  While the Due Process Clause requires the  government to prove the existence of every element of the offense beyond  a reasonable doubt, In re Winship, 397 U. S. 358, 364 (1970), within  fairly broad limits the definition of those elements is up to the State.  We thus noted in Patterson v. New York, supra, at 211, n. 12, that the various "due process guarantees are dependent upon the law as defined in  the legislative branches," particularly on the legislature's enumeration  of the elements of an offense, see id., at 210 ("the Due Process Clause  requires the prosecution to prove beyond a reasonable doubt all of the  elements included in  the definition of the offense of which the  defendant is charged"). See also McMillan v. Pennsylvania, 477 U. S.  79, 85  (1986) ("in determining what facts must be proved beyond a  reasonable doubt the state legislature's definition of the elements of  the offense is usually dispositive"); Martin v. Ohio, 480 U. S. 228, 233   (1987) (same).


72
While I therefore find no apparent constitutional reason why Montana could not render evidence of voluntary intoxication excludable  as irrelevant by redefining "knowledge" and "purpose," as they apply to  the mental state element of its substantive offenses, or by making some  other provision for mental state,11 I do not believe that I am free  to conclude that Montana has done so here.  Our view of state law is  limited by its interpretation in the State's highest court, see R. A. V.  v. St. Paul, 505 U. S. 377, 381 (1992); Murdock v. Memphis, 20 Wall. 590   (1875), and I am not able to square the State Supreme Court's opinion in  this case with the position advanced by the State here (and supported by  the United States, as amicus curiae), that Montana's legislature changed  the definition of culpable mental states when it enacted Section(s)  45-2-203.  See 272 Mont. 114, 122, 900 P. 2d 260, 265 (1995) ("It is  clear that such evidence [of intoxication] was relevant to the issue of  whether Egelhoff acted knowingly and purposely"); id., at 263-265   (noting and not disputing Egelhoff's claim that Section(s) 45-2-203  removes from the jury's consideration facts relevant to a determination  of mental state, an essential element of the offense).


73
A second possible (although by no means certain) option may also  be open.  Even under a definition of the mental state element that would  treat evidence of voluntary intoxication as relevant and exculpatory,  the exclusion of such evidence is typically permissible so long a State  presents a "`valid' reason," ante, at 7 (O'Connor, J., dissenting), to  justify keeping it out.  Chambers and its line of precedent certainly recognize that such evidence may often properly be excluded.  See Chambers, supra, at 295.  As the plurality notes, ante, at 4, Federal  Rules of Evidence 403 (addressing prejudice, confusion, misleading the  jury, waste of time, etc.) and 802 (hearsay) provide two examples of an  adequate reason for excluding relevant evidence.


74
Hence, I do not rule out the possibility of justifying exclusion  of relevant intoxication evidence in a case like this. At the least,  there may be reasons beyond those actually advanced by Montana that  might have induced a state to reject its prior law freely admitting  intoxication evidence going to mental state.


75
A State (though not necessarily Montana) might, for example, argue that admitting intoxication evidence on the issue of culpable  mental state but not on a defense of incapacity (as to which it is  widely assumed to be excludable as generally irrelevant12) would be  irrational since both capacity to obey the law and purpose to accomplish  a criminal result presuppose volitional ability.  See Model Penal Code  Section(s) 4.01 ("A person is not responsible for criminal conduct if at  the time of such conduct as a result of mental disease or defect he  lacks substantial capacity . . . to conform his conduct to the requirements of law") and Model Penal Code Section(s) 2.02(2)(a)(i) ("A  person acts purposely with respect to a material element of an offense  when . . . it is his conscious object to engage in conduct of that  nature or to cause such a result"). And quite apart from any technical  irrationality, a State might think that admitting the evidence in  question on culpable mental state but not capacity (when each was a jury issue in a given case) would raise too a high a risk of juror confusion.  See Brief for State of Hawaii et. al as Amici Curiae ("[U]se of   [intoxication] evidence runs an unacceptable risk of potential  manipulation by defendants and [will lead to] confusion of juries, who  may not adequately appreciate that intoxication evidence is to be used  for the question of mental state, not for purposes of showing an  excuse").  While Thomas Reed Powell reportedly suggested that "learning  to think like a  lawyer is when you learn to think about one thing that  is connected to another without thinking about the other thing it is  connected to," Teachout, Sentimental Metaphors, 34 UCLA L. Rev. 537, 545 (1986), a State might argue that its law should be structured on the  assumption that its jurors typically will not  suffer from this  facility.13


76
Quite apart from the fact that Montana has made no such arguments for justification here, however, I am not at all sure why such  arguments would go any further than justifying redefinition of mental  states (the first option above).  I do not understand why they would  justify the state in cutting the conceptual corner14 by leaving the  definitions of culpable mental states untouched but excluding evidence  relevant to this proof.  Absent a convincing argument for cutting that  corner, Chambers and the like constrain us to hold the current Montana statute unconstitutional.  I therefore respectfully dissent.


77
Justice Breyer, with whom Justice Stevens joins, dissenting.


78
I join Justice O'Connor's dissent.  As the dissent says, and as  Justice Souter agrees, the Montana Supreme Court did not understand  Montana's statute to have redefined the mental element of deliberate  homicide.  In my view, however, this circumstance is not simply  happenstance or a technical matter that deprives us of the power to  uphold that statute.  To have read the statute differently-to treat it  as if it had redefined the mental element-would produce anomalous  results.  A statute that makes voluntary intoxication the legal  equivalent of purpose or knowledge but only where external circumstances  would establish purpose or knowledge in the absence of intoxication, see ante, at 2 (Ginsburg, J., concurring), is a statute that turns guilt or  innocence not upon state of mind, but upon irrelevant external  circumstances.  An intoxicated driver stopped at an intersection who  unknowingly accelerated into a pedestrian would likely be found guilty,  for a jury unaware of intoxication would likely infer knowledge or  purpose.  An identically intoxicated driver racing along a highway who  unknowingly sideswiped another car would likely be found innocent, for a  jury unaware of intoxication would likely infer  negligence.  Why would a legislature want to write a statute that draws such a distinction, upon  which a sentence of life imprisonment, or death, may turn? If the  legislature wanted to  equate voluntary intoxication, knowledge, and  purpose, why would it not write a statute that plainly says so, instead  of doing so in a roundabout manner that would affect, in dramatically  different ways, those whose minds, deeds, and consequences seem   identical?  I would reserve the question of whether or not such a  hypothetical statute might exceed constitutional limits.  Cf. McMillan  v. Pennsylvania, 477 U. S. 79, 85-86 (1986); Patterson  v. New York, 432  U. S. 197, 210 (1977); Mullaney v. Wilbur, 421  U. S. 684, 698-699   (1975).



1
 Justice O'Connor agrees that "a defendant does not enjoy an absolute right to present evidence relevant to his defense," post, at 2,  and does not dispute the validity of the evidentiary rules mentioned  above.  She contends, however, that Montana's rule is not like these  because it "places a blanket exclusion on a category of evidence that  would allow the accused to negate the offense's mental-state element."  Ibid. (emphasis added).  Of course hearsay is a "category" of evidence  as well; what Justice O'Connor apparently has in mind is that this  particular category relates to evidence tending to prove a particular  fact.  That is indeed a distinction, but it is hard to understand why it  should make a difference.  So long as the category of excluded evidence is selected on a basis that has good and traditional policy support, it  ought to be valid.
We do not entirely understand Justice O'Connor's argument that the vice of Section(s) 45-2-203 is that it excludes evidence "essential  to the accused's defense," post, at 4; see also post, at 13.  Evidence  of intoxication is not always "essential," any more than hearsay  evidence is always "nonessential."


2
 Besides Montana, those States are Arizona, see State v.  Ramos, 133 Ariz. 4, 6, 648 P. 2d 119, 121 (1982) (upholding statute precluding jury consideration of intoxication for purposes of determining whether defendant acted "knowingly"); Ariz. Rev. Stat. Ann.  Section(s) 13-503 (Supp. 1995-1996) (voluntary intoxication "is not a  defense for any criminal act or requisite state of mind"); Arkansas, see  White v. State, 290 Ark. 130, 134-137, 717 S. W. 2d 784, 786-788 (1986) (interpreting Ark. Code Ann. Section(s) 5-2-207 (1993)); Delaware, see  Wyant v. State, 519 A. 2d 649, 651 (1986) (interpreting Del. Code. Ann.,  Tit. 11, Section(s) 421 (1995)); Georgia, see Foster v. State, 258 Ga.  736, 742-745, 374 S. E. 2d 188, 194-196 (1988) (interpreting Ga. Code  Ann. Section(s) 16-3-4 (1992)), cert. denied, 490 U. S. 1085 (1989);  Hawaii, see Haw. Rev. Stat. Section(s) 702-230(2) (1993), State v.  Souza, 72 Haw. 246, 248, 813 P. 2d 1384, 1386 (1991) (Section(s)  702-230(2) is constitutional); Mississippi, see Lanier v. State, 533 So.  2d 473, 478-479 (1988); Missouri, see Mo. Rev. Stat. Section(s) 562.076   (1994), State v. Erwin, 848 S. W. 2d 476, 482 (Section(s) 562.076 is  constitutional), cert. denied, 510 U. S. 826 (1993); South Carolina, see  State v. Vaughn, 268 S. C. 119, 124-126, 232 S. E. 2d 328, 330-331   (1977); and Texas, see Hawkins v. State, 605 S. W. 2d 586, 589 (Tex.  Crim. App. 1980) (interpreting Tex. Penal Code Ann. Section(s) 8.04).


3
 In his dissent, Justice Souter acknowledges that there may  be valid policy reasons supporting the Montana law, some of which were  brought forward by States that appeared as amici, see post, at 6-7   (quoting Brief for State of Hawaii et al. as Amici Curiae 16).  He  refuses to consider the adequacy of those reasons, however, because they  were not brought forward by Montana's lawyers.  We do not know why the  constitutionality of Montana's enactment should be subject to the  condition subsequent that its lawyers be able to guess a policy  justification that satisfies this Court.  Whatever they guess will of  course not necessarily be the real reason the Montana legislature  adopted the provision; Montana's lawyers must speculate about that, just  as we must. Our standard formulation has been "Where . . . there are plausible reasons for [the legislature's] action, our inquiry is at an  end."  United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166,  179 (1980).  Justice Souter would change that to "Where there are  plausible reasons that counsel for the party supporting the legislation  have mentioned."  Or perhaps it is "Where there are plausible reasons  that counsel for the Government (or State) have mentioned"-so that in  this case Hawaii's amicus brief would count if a Hawaiian statute were  at issue.  Either way, it is strange for the constitutionality of a state law to depend upon whether the lawyers hired by the State (or  elected by its people) to defend the law happen to hit the right boxes  on our bingo-card of acceptable policy justifications.


4
 As appears from this analysis, we are in complete agreement with the concurrence that Section(s) 45-2-203 "embodies a legislative  judgment regarding the circumstances under which individuals may be held  criminally responsible for their actions," post, at 2.  We also agree  that the statute "`extract[s] the entire subject of voluntary  intoxication from the mens rea inquiry,'" ibid.  We believe that this  judgment may be implemented, and this effect achieved, with equal  legitimacy by amending the substantive requirements for each crime, or  by simply excluding intoxication evidence from the trial.  We address this as an evidentiary statute simply because that is how the Supreme  Court of Montana chose to analyze it.


5
 These many valid policy reasons for excluding evidence of voluntary intoxication refute Justice O'Connor's claim that Section(s)  45-2-203 has no purpose other than to improve the State's likelihood of  winning a conviction, see post, at 7, 13. Such a claim is no more  accurate as applied to this provision than it would have been as applied  to the New York law in Patterson v. New York, 432 U. S. 197 (1977),  which placed upon the defendant the burden of proving the affirmative  defense of extreme emotional disturbance.  We upheld that New York law,  even though we found it "very likely true that fewer convictions of  murder would occur if New York were required to negative the affirmative  defense at issue here."  Id., at 209.  Here, as in Patterson, any  increase in the chance of obtaining a conviction is merely a consequence of pursuing legitimate penological goals.


6
 Justice O'Connor maintains that "to determine whether a fundamental principle of justice has been violated here, we cannot consider only the historical disallowance of intoxication evidence, but  must also consider the `fundamental principle' that a defendant has a  right to a fair opportunity to put forward his defense."  Post, at  11-12.  What Justice O'Connor overlooks, however, is that the historical  disallowance of intoxication evidence sheds light upon what our society  has understood by a "fair opportunity to put forward [a] defense."  That  "fundamental principle" has demonstrably not included the right to  introduce intoxication evidence.


7
 Justice Breyer questions the States' authority to treat voluntarily intoxicated and sober defendants as equally culpable for  their actions. See post, at 2.  He asks, moreover, post, at 1-2, why a  legislature concerned with the high incidence of crime committed by  individuals in an alcohol-impaired condition would choose the course  Montana and several other States have taken. It would be more sensible,  he suggests, to "equate voluntary intoxication, [with] knowledge, and  purpose," post, at 2, thus dispensing entirely with the mens rea  requirement when individuals act under the influence of a  judgment-impairing substance.  It does not seem to me strange, however,  that States have resisted such a catch-all approach and have enacted, instead, a measure less sweeping, one that retains a mens rea requirement, but "define[s] culpable mental state so as to give voluntary intoxication no exculpatory relevance."  See post, at 4 (Souter, J., dissenting).  Nor is it at all clear to me that "a jury  unaware of intoxication would likely infer knowledge or purpose" in the  example Justice Breyer provides, post, at 1.  It is not only in fiction,  see J. Thurber, The Secret Life of Walter Mitty (1983) (originally  published in The New Yorker in 1939), but, sadly, in real life as well,  that sober people drive while daydreaming or otherwise failing to pay  attention to the road.


8
 The United States, as amicus curiae, so suggested at oral argument. See Tr. of Oral Arg. 20 ("[T]he State court never really got  to the question of whether there has been a [substantive] change in the  State law, because it [assumed] that, to the extent that there had been  one, it was barred by [In re Winship, 397 U. S. 358 (1970)].").


9
 As the United States observed, it is generally within the States' domain "to determine what are the elements of criminal responsibility." Tr. of Oral Arg. 19-20.


10
 "The balance of which I speak is the balance struck by  this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.  That tradition is a living thing.  A decision of this Court which  radically departs from it could not long survive, while a decision which  builds on what has survived is likely to be sound.  No formula could  serve as a substitute, in this area, for judg-ment and restraint."  Poe  v. Ullman, 367 U. S., at 542 (Harlan, J., dissenting).


11
 See State v. Souza, 72 Haw. 246, 249, 813 P. 2d 1384, 1386 (1991) ("The legislature was entitled to redefine the mens rea element  of crimes and to exclude evidence of voluntary intoxication to negate  state of mind").


12
 See American Law Institute, Model Penal Code Section(s) 2.08(4) (1985), which deems intoxication relevant for this purpose only  where by reason of "pathological intoxication" an "actor at the time of  his conduct lacks substantial capacity . . . to conform his conduct to  the requirements of law."  The Model Penal Code further defines  "pathological intoxication" as "intoxication grossly excessive in  degree, given the amount of the intoxicant, to which the actor does not  know he is susceptible."  Id., Section(s) 2.08(5)(c).


13
 Teachout notes that Powell acknowledged that this concept was not explicitly described in his essay entitled A Comment on Professor Sabine's "Pragmatic Approach to Politics," 81 Pol. Sci. Q. 52,  59 (1966), but in a letter wrote:
"If you think you can think about a thing that is hitched to      other things without thinking about the things that it is      hitched to, then you have a legal mind."
Quoted in Teachout, Sentimental Metaphors, 34  UCLA L. Rev., at 545, n. 17.


14
 Cf. Rock Island, A. & L. R. Co. v. United States, 254 U.  S. 141, 143 (1920) ("Men must turn square corners when they deal with the Government").


