FRANCIS, WARDEN v. FRANKLIN
No. 83-1590.
Argued November 28, 1984
Decided April 29, 1985
BRENNAN, J., delivered the opinion of the Court, in which White, MARSHALL, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, post, p. 327. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and O’Connor, J., joined, post, p. 331.
Susan V. Boleyn, Assistant Attorney General of Georgia, argued the cause for petitioner. With her on the brief were Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, Marion 0. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.
Ronald J. Tabak argued the cause for respondent. With him on the brief was John Charles Boger.
Justice Brennan
delivered the opinion of the Court.
This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v. Montana, 442 U. S. 510 (1979). Specifically, we must evaluate jury instructions stating that: (1) “[t]he acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted” and (2) “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt. See Sandstrom, supra; In re Winship, 397 U. S. 358, 364 (1970).
1 — 1
Respondent Raymond Lee Franklin, then 21 years old and imprisoned for offenses unrelated to this case, sought to escape custody on January 17, 1979, while he and three other prisoners were receiving dental care at a local dentist’s office. The four prisoners were secured by handcuffs to the same 8-foot length of chain as they sat in the dentist’s waiting room. At some point Franklin was released from the chain, taken into the dentist’s office and given preliminary treatment, and then escorted back to the waiting room. As another prisoner was being released, Franklin, who had not been reshackled, seized a pistol from one of the two officers and managed to escape. He forced the dentist’s assistant to accompany him as a hostage.
In the parking lot Franklin found the dentist’s automobile, the keys to which he had taken before escaping, but was unable to unlock the door. He then fled with the dental assistant after refusing her request to be set free. The two set out across an open clearing and came upon a local resident. Franklin demanded this resident’s car. When the resident responded that he did not own one, Franklin made no effort to harm him but continued with the dental assistant until they came to the home of the victim, one Collie. Franklin pounded on the heavy wooden front door of the home and Collie, a retired 72-year-old carpenter, answered. Franklin was pointing the stolen pistol at the door when Collie arrived. As Franklin demanded his car keys, Collie slammed the door. At this moment Franklin’s gun went off. The bullet traveled through the wooden door and into Collie’s chest killing him. Seconds later the gun fired again. The second bullet traveled upward through the door and into the ceiling of the residence.
Hearing the shots, the victim’s wife entered the front room. In the confusion accompanying the shooting, the dental assistant fled and Franklin did not attempt to stop her. Franklin entered the house, demanded the car keys from the victim’s wife, and added the threat “I might as well kill you.” When she did not provide the keys, however, he made no effort to thwart her escape. Franklin then stepped outside and encountered the victim’s adult daughter. He repeated his demand for car keys but made no effort to stop the daughter when she refused the demand and fled. Failing to obtain a car, Franklin left and remained at large until nightfall.
Shortly after being captured, Franklin made a formal statement to the authorities in which he admitted that he had shot the victim but emphatically denied that he did so voluntarily or intentionally. He claimed that the shots were fired in accidental response to the slamming of the door. He was tried in the Superior Court of Bibb County, Georgia, on charges of malice murder — a capital offense in Georgia— and kidnaping. His sole defense to the malice murder charge was a lack of the requisite intent to kill. To support his version of the events Franklin offered substantial circumstantial evidence tending to show a lack of intent. He claimed that the circumstances surrounding the firing of the gun, particularly the slamming of the door and the trajectory of the second bullet, supported the hypothesis of accident, and that his immediate confession to that effect buttressed the assertion. He also argued that his treatment of every other person encountered during the escape indicated a lack of disposition to use force.
On the dispositive issue of intent, the trial judge instructed the jury as follows:
“A crime is a violation of a statute of this State in which there shall be a union of joint operation of act or omission to act, and intention or criminal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.” App. 8a-9a.
Approximately one hour after the jury had received the charge and retired for deliberation, it returned to the courtroom and requested reinstruction on the element of intent and the definition of accident. Id., at 13a-14a. Upon receiving the requested reinstruction, the jury deliberated 10 more minutes and returned a verdict of guilty. The next day Franklin was sentenced to death for the murder conviction.
Franklin unsuccessfully appealed the conviction and sentence to the Georgia Supreme Court. Franklin v. State, 245 Ga. 141, 263 S. E. 2d 666, cert. denied, 447 U. S. 930 (1980). He then unsuccessfully sought state postconviction relief. See Franklin v. Zant, Habeas Corpus File No. 5025 (Super. Ct. Butts Cty., Ga., Sept. 10, 1981), cert. denied, 456 U. S. 938 (1982). Having exhausted state postconviction remedies, Franklin sought federal habeas corpus relief, pursuant to 28 U. S. C. §2254, in the United States District Court for the Middle District of Georgia on May 14, 1982. That court denied the application without an evidentiary hearing. App. 16a.
Franklin appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals reversed the District Court and ordered that the writ issue. 720 F. 2d 1206 (1983). The court held that the jury charge on the dis-positive issue of intent could have been interpreted by a reasonable juror as a mandatory presumption that shifted to the defendant a burden of persuasion on the intent element of the offense. For this reason the court held that the jury charge ran afoul of fundamental Fourteenth Amendment due process guarantees as explicated in Sandstrom v. Montana, 442 U. S. 510 (1979). See 720 F. 2d, at 1208-1212. In denying petitioner Francis’ subsequent petition for rehearing, the panel elaborated its earlier holding to make clear that the effect of the presumption at issue had been considered in the context of the jury charge as a whole. See 723 F. 2d 770, 771-772 (1984) (per curiam).
We granted certiorari. 467 U. S. 1225 (1984). We affirm.
I — H I
The Due Process Clause of the Fourteenth Amendment “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., at 364. This “bedrock, ‘axiomatic and elementary’ [constitutional] principle,” id., at 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 520-524; Patterson v. New York, 432 U. S. 197, 210, 215 (1977); Mullaney v. Wilbur, 421 U. S. 684, 698-701 (1975); see also Morissette v. United States, 342 U. S. 246, 274-275 (1952). The prohibition protects the “fundamental value determination of our society,” given voice in Justice Harlan’s concurrence in Winship, that “it is far worse to convict an innocent man than to let a guilty man go free.” 397 U. S., at 372. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958). The question before the Court in this case is almost identical to that before the Court in Sandstrom: “whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of. . . state of mind,” 442 U. S., at 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense.
The analysis is straightforward. “The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes.” Id., at 514. The court must determine whether the challenged portion of the instruction creates a mandatory presumption, see id., at 520-524, or merely a permissive inference, see Ulster County Court v. Allen, 442 U. S. 140, 157-163 (1979). A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.
Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. Patterson v. New York, supra, at 215 (“[A] State must prove every ingredient of an offense beyond a reasonable doubt and . . . may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense”). See also Sandstrom, supra, at 520-524; Mullaney v. Wilbur, supra, at 698-701. A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom. A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Ulster County Court, supra, at 157-163.
Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. Cupp v. Naughten, 414 U. S. 141, 147 (1973). This analysis “requires careful attention to the words actually spoken to the jury ... , for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom, supra, at 514.
A
Franklin levels his constitutional attack at the following two sentences in the jury charge: “The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” App. 8a-9a. The Georgia Supreme Court has interpreted this language as creating no more than a permissive inference that comports with the constitutional standards of Ulster County Court v. Allen, supra. See Skrine v. State, 244 Ga. 520, 521, 260 S. E. 2d 900, 901 (1979). The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning. Sandstrom, 442 U. S., at 516-517 (state court “is not the final authority on the interpretation which a jury could have given the instruction”). The federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.
The challenged sentences are cast in the language of command. They instruct the jury that “acts of a person of sound mind and discretion are presumed to be the product of the person’s will,” and that a person “is presumed to intend the natural and probable consequences of his acts,” App. 8a-9a (emphasis added). These words carry precisely the message of the language condemned in Sandstrom, 442 U. S., at 515 (“ ‘The law presumes that a person intends the ordinary consequences of his voluntary acts’”). The jurors “were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory.” Ibid, (emphasis added). The portion of the jury charge challenged in this case directs the jury to presume an essential element of the offense — intent to kill — upon proof of other elements of the offense — the act of slaying another. In this way the instructions “undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ulster County Court v. Allen, supra, at 156 (emphasis added). acknowledged that the instructions there challenged could have been reasonably understood as creating an irrebuttable presumption, 442 U. S., at 517, it was not on this basis alone that the instructions were invalidated. Had the jury reasonably understood the instructions as creating a mandatory rebuttable presumption the instructions would have been no less constitutionally infirm. Id., at 520-524.
An irrebuttable or conclusive presumption reheves the State of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. A mandatory rebuttable presumption is perhaps less onerous from the defendant’s perspective, but it is no less unconstitutional. Our cases make clear that “[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” Patterson v. New York, 432 U. S., at 215. In Mullaney v. Wilbur we explicitly held unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion on the question of intent. 421 U. S., at 698-701. And in Sandstrom we similarly held that instructions that might reasonably have been understood by the jury as creating a mandatory rebuttable presumption were unconstitutional. 442 U. S., at 524.
When combined with the immediately preceding mandatory language, the instruction that the presumptions “may be rebutted” could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption “may be rebutted” could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.
B
The jury, of course, did not hear only the two challenged sentences. The jury charge taken as a whole might have explained the proper allocation of burdens with sufficient clarity that any ambiguity in the particular language challenged could not have been understood by a reasonable juror as shifting the burden of persuasion. See Cupp v. Naughten, 414 U. S. 141 (1973). The State argues that sufficient clarifying language exists in this case. In particular, the State relies on an earlier portion of the charge instructing the jurors that the defendant was presumed innocent and that the State was required to prove every element of the offense beyond a reasonable doubt. The State also points to the sentence immediately following the challenged portion of the charge, which reads: “[a] person will not be presumed to act with criminal intention . . . .” App. 9a.
As we explained in Sandstrom, general instructions on the State’s burden of persuasion and the defendant’s presumption of innocence are not “rhetorically inconsistent with a conclusive or burden-shifting presumption,” because “[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.” 442 U. S., at 518-519, n. 7. In light of the instructions on intent given in this case, a reasonable juror could thus have thought that, although intent must be proved beyond a reasonable doubt, proof of the firing of the gun and its ordinary consequences constituted proof of intent beyond a reasonable doubt unless the defendant persuaded the jury otherwise. Cf. Mullaney v. Wilbur, 421 U. S., at 703, n. 31. These general instructions as to the prosecution’s burden and the defendant’s presumption of innocence do not dissipate the error in the challenged portion of the instructions.
Nor does the more specific instruction following the challenged sentences — “A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted,” App. 9a — provide a sufficient corrective. It may well be that this “criminal intention” instruction was not directed to the element of intent at all, but to another element of the Georgia crime of malice murder. The statutory definition of capital murder in Georgia requires malice aforethought. Ga. Code Ann. § 16-5-1(1984) (formerly Ga. Code Ann. § 26-1101(a)(1978)). Under state law malice aforethought comprises two elements: intent to kill and the absence of provocation or justification. See Patterson v. State, 239 Ga. 409, 416-417, 238 S. E. 2d 2, 8 (1977); Lamb v. Jernigan, 683 F. 2d 1332, 1337 (CA11 1982) (interpreting Ga. Code Ann. § 16-5-1), cert. denied, 460 U. S. 1024 (1983). At another point in the charge in this case, the trial court, consistently with this understanding of Georgia law, instructed the jury that malice is “the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse.” App. 10a.
The statement “criminal intention may not be presumed” may well have been intended to instruct the jurors that they were not permitted to presume the absence of provocation or justification but that they could infer this conclusion from circumstantial evidence. Whatever the court’s motivation in giving the instruction, the jury could certainly have understood it this way. A reasonable juror trying to make sense of the juxtaposition of an instruction that “a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts,” id., at 8a-9a, and an instruction that “[a] person will not be presumed to act with criminal intention,” id., at 9a, may well have thought that the instructions related to different elements of the crime and were therefore not contradictory — that he could presume intent to kill but not the absence of justification or provocation.
Even if a reasonable juror could have understood the prohibition of presuming “criminal intention” as applying to the element of intent, that instruction did no more than contradict the instruction in the immediately preceding sentence. A reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption. Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict. Had the instruction “[a] person ... is presumed to intend the natural and probable consequences of his acts,” App. 8a-9a, been followed by the instruction “this means that a person will not be presumed to act with criminal intention but the jury may find criminal intention upon consideration of all circumstances connected with the act for which the accused is prosecuted,” a somewhat stronger argument might be made that a reasonable juror could not have understood the challenged language as shifting the burden of persuasion to the defendant. Cf. Sandstrom, 442 U. S., at 517 (“[GJiven the lack of qualifying instructions as to the legal effect of the presumption, we cannot discount the possibility that the jury may have interpreted the instruction” in an unconstitutional manner). See also Corn v. Zant, 708 F. 2d 549, 559 (CA11 1983), cert. denied, 467 U. S. 1220 (1984). Whether or not such explanatory language might have been sufficient, however, no such language is present in this jury charge. If a juror thought the “criminal intention” instruction pertained to the element of intent, the juror was left in a quandary as to whether to follow that instruction or the immediately preceding one it contradicted.
Because a reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause.
I — I HH
Petitioner argues that even if the jury charge fails under Sandstrom this Court should overturn the Court of Appeals because the constitutional infirmity in the charge was harmless error on this record. This Court has not resolved whether an erroneous charge that shifts a burden of persuasion to the defendant on an essential element of an offense can ever be harmless. See Connecticut v. Johnson, 460 U. S. 73 (1983). We need not resolve the question in this case. The Court of Appeals conducted a careful harmless-error inquiry and concluded that the Sandstrom error at trial could not be deemed harmless. 720 F. 2d, at 1212. The court noted:
“[Franklin’s] only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of the first shot with the slamming of the door, the second shot's failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of 'no intent.’ Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence ... we cannot find the error to be harmless.” Ibid.
Even under the harmless-error standard proposed by the dissenting Justices in Connecticut v. Johnson, swpra, at 97, n. 5 (evidence “so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption”) (Powell, J., joined by Burger, C. J., and Rehnquist and O’Connor, JJ., dissenting), this analysis by the Court of Appeals is surely correct. The jury’s request for reinstruction on the elements of malice and accident, App. 13a-14a, lends further substance to the court’s conclusion that the evidence of intent was far from overwhelming in this case. We therefore affirm the Court of Appeals on the harmless-error question as well.
IV
Sandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U. S., at 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court’s judgment is therefore
Affirmed.
The malice murder statute at the time in question provided:
“A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. . . . Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Ga. Code Ann. § 26-1101(a) (1978).
A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the ease once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. See Sandstrom v. Montana, 442 U. S. 510, 517-518 (1979).
We are not required to decide in this case whether a mandatory presumption that shifts only a burden of production to the defendant is consistent with the Due Process Clause, and we express no opinion on that question.
Intent to kill is an element of the offense of malice murder in Georgia. See Patterson v. State, 239 Ga. 409, 416-417, 238 S. E. 2d 2, 8 (1977).
Justice Rehnquist’s suggestion in dissent that our holding with respect to the constitutionality of mandatory rebuttable presumptions “extends” prior law, post, at 332, is simply inaccurate. In Sandstrom v. Montana our holding rested on equally valid alternative rationales: “[T]he question before this Court is whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind. We conclude that under either of the two possible interpretations of the instruction set out above, precisely that effect would result, and that the instruction therefore represents constitutional error.” 442 U. S., at 521 (emphasis added). In any event, the principle that mandatory rebuttable presumptions violate due process had been definitively established prior to Sandstrom. In Mullaney v. Wilbur, it was a mandatory rebuttable presumption that we held unconstitutional. 421 U. S., at 698-701. As we explained in Patterson v. New York:
“Mullaney surely held that a State. . . may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. . . . Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” 432 U. S., at 215.
An irrebuttable presumption, of course, does not shift any burden to the defendant; it eliminates an element from the case if the State proves the requisite predicate facts. Thus the Court in Patterson could only have been referring to a mandatory rebuttable presumption when it stated that “such shifting of the burden of persuasion ... is impermissible.” Ibid. (emphasis added).
These portions of the instructions read:
“I charge you that before the State is entitled to a verdict of conviction of this defendant at your hands . . . the burden is upon the State of proving the defendant’s guilt as charged . . . beyond a reasonable doubt.” App. 4a.
“Now . . . the defendant enters upon his trial with the presumption of innocence in his favor and this presumption. . . remains with him throughout the trial, unless it is overcome by evidence sufficiently strong to satisfy you of his guilt. . . beyond a reasonable doubt.” Id., at 5a.
Because the jurors heard the divergent intent instructions before they heard the instructions about absence of justification, Justice Rehnquist’s dissent argues that no reasonable juror could have understood the criminal intent instruction as referring to the absence of justification. The dissent reproves the Court for reading the instructions “as a ‘looking-glass charge’ which, when held to a mirror, reads more clearly in the opposite direction.” Post, at 340. A reasonable juror, however, would have sought to make sense of the conflicting intent instructions not only at the initial moment of hearing them but also later in the jury room after having heard the entire charge. One would expect most of the juror’s reflection about the meaning of the instructions to occur during this subsequent deliberative stage of the process. Under these circumstances, it is certainly reasonable to expect a juror to attempt to make sense of a confusing earlier portion of the instruction by reference to a later portion of the instruction. The dissent obviously accepts this proposition because much of the language the dissent marshals to argue that the jury would not have misunderstood the intent instruction appears several paragraphs after the conflicting sentences about intent. Indeed much of this purportedly clarifying language appears after the portion of the charge concerning the element of absence of justification. See post, at 336 (Rehnquist, J., dissenting), quoting App. 10a.
It is puzzling that the dissent thinks it “defies belief” to suggest that a reasonable juror would have related the contradictory intent instructions to the later instructions about the element of malice. Post, at 339. As the portion of the charge quoted in the dissent makes clear, the later malice instructions specifically spoke of intent: “Malice ... is the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse, which intention must exist at the time of the killing.” App. 10a. See post, at 336 (Rehnquist, J., dissenting). A reasonable juror might well have sought to understand this language by reference to the earlier instruction referring to criminal intent.
Finally, the dissent’s representation of the language in this part of the charge as a clarifying “express statemen[t] . . . that there was no burden on the defendant to disprove malice,” post, at 340, is misleading. The relevant portion of the charge reads: “it is not required of the accused to prove an absence of malice, if the evidence for the State shows facts which may excuse or justify the homicide.” App. 10a. This language is most naturally read as implying that if the State’s evidence does not show mitigating facts the defendant does have the burden to prove absence of malice. Thus, if anything, this portion of the charge exacerbates the potential for an unconstitutional shifting of the burden to the defendant.
Justice Rehnquist’s dissent would hold a jury instruction invalid only when “it must at least be likely” that a reasonable juror would have understood the charge unconstitutionally to shift a burden of persuasion. Post, at 342. Apparently this “at least likely” test would not be met even when there exists a reasonable possibility that a juror would have understood the instructions unconstitutionally, so long as the instructions admitted of a “more ‘reasonable’” constitutional interpretation. Post, at 340-341. Apart from suggesting that application of the “at least likely” standard would lead to the opposite result in the present case, the dissent leaves its proposed alternative distressingly undefined. Even when faced with clearly contradictory instructions respecting allocation of the burden of persuasion on a crucial element of an offense, a reviewing court apparently would be required to intuit, based on its sense of the “tone” of the jury instructions as a whole, see ibid., whether a reasonable juror was more likely to have reached a constitutional understanding of the instructions than an unconstitutional understanding of the instructions.
This proposed alternative standard provides no sound basis for appellate review of jury instructions. Its malleability will certainly generate inconsistent appellate results and thereby compound the confusion that has plagued this area of the law. Perhaps more importantly, the suggested approach provides no incentive for trial courts to weed out potentially infirm language from jury instructions; in every case, the “presumption of innocence” boilerplate in the instructions will supply a basis from which to argue that the “tone” of the charge as a whole is not unconstitutional. For these reasons, the proposed standard promises reviewing courts, including this Court, an unending stream of cases in which ad hoe decisions will have to be made about the “tone” of jury instructions as a whole.
Most importantly, the dissent’s proposed standard is irreconcilable with bedrock due process principles. The Court today holds that contradictory instructions as to intent — one of which imparts to the jury an unconstitutional understanding of the allocation of burdens of persuasion — create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner, unless other language in the charge explains the infirm language sufficiently to eliminate this possibility. If such a reasonable possibility of an unconstitutional understanding exists, “we have no way of knowing that [the defendant] was not convicted on the basis of the unconstitutional instruction.” Sandstrom, 442 U. S., at 526. For this reason, it has been settled law since Stromberg v. California, 283 U. S. 359 (1931), that when there exists a reasonable possibility that the jury relied on an unconstitutional understanding of the law in reaching a guilty verdict, that verdict must be set aside. See Leary v. United States, 395 U. S. 6, 31-32 (1969); Bachellar v. Maryland, 397 U. S. 564, 571 (1970). The dissent’s proposed alternative cannot be squared with this principle; notwithstanding a substantial doubt as to whether the jury decided that the State proved intent beyond a reasonable doubt, the dissent would uphold this conviction based on an impressionistic and intuitive judgment that it was more likely that the jury understood the charge in a constitutional manner than in an unconstitutional manner.
Rejecting this conclusion, Justice Rehnquist’s dissent “simply do[es] not believe” that a reasonable juror would have paid sufficiently close attention to the particular language of the jury instructions to have been perplexed by the contradictory intent instructions. See post, at 340. See also Sandstrom v. Montana, supra, at 528 (Rehnquist, J., concurring) (“I continue to have doubts as to whether this particular jury was so attentively attuned to the instructions of the trial court that it divined the difference recognized by lawyers between ‘infer’ and ‘presume’ ”). Apparently the dissent would have the degree of attention a juror is presumed to pay to particular jury instructions vary with whether a presumption of attentiveness would help or harm the criminal defendant. See, e. g., Parker v. Randolph, 442 U. S. 62, 73 (1979) (opinion of Rehnquist, J.) (“A crucial assumption underlying that system [of trial by jury] is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed. . . . [A]n instruction directing the jury to consider a codefendant’s extrajudicial statement only against its source has been found sufficient to avoid offending the confrontation right of the implicated defendant”); see also id., at 75, n. 7 (“The ‘rule’ — indeed, the premise upon which the system of jury trials functions under the American judicial system — is that juries can be trusted to follow the trial court’s instructions”). Cf. Wainwright v. Witt, 469 U. S. 412 (1985).
The Court presumes that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them. Cases may arise in which the risk of prejudice inhering in material put before the jury may be so great that even a limiting instruction will not adequately protect a criminal defendant’s constitutional rights. E. g., Bruton v. United States, 391 U. S. 123 (1968); Jackson v. Denno, 378 U. S. 368 (1964). Absent such extraordinary situations, however, we adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions. As Chief Justice Traynor has said: “[W]e must assume that juries for the most part understand and faithfully follow instructions. The concept of a fair trial encompasses a decision by a tribunal that has understood and applied the law to all material issues in the case.” R. Traynor, The Riddle of Harmless Error 73-74 (1970) (footnote omitted), quoted in Connecticut v. Johnson, 460 U. S. 73, 85, n. 14 (1983) (opinion of Blackmun, J.).
The primary task of this Court upon review of a harmless-error determination by the court of appeals is to ensure that the court undertook a thorough inquiry and made clear the basis of its decision. See Connecticut v. Johnson, supra, at 102 (Powell, J., dissenting) (harmless error “is a question more appropriately left to the courts below”).