Spencer v. Texas/Opinion of the Court

by John Marshall Harlan II

United States Supreme Court

385 U.S. 554

Spencer  v.  Texas

 Argued: Oct. 17 and 18, 1966. --- Decided: Jan 23, 1967

Texas, reflecting widely established policies in the criminal law of this country, has long had on its books so-called recidivist or habitual-criminal statutes. Their effect is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past. The three cases at hand challenge the procedures employed by Texas in the enforcement of such statutes. ^[1]

Until recently, and at the time of the convictions before us, the essence of those procedures was that, through allegations in the indictment and the introduction of proof respecting a defendant's past convictions, the jury trying the pending criminal charge was fully informed of such previous derelictions, but was also charged by the court that such matters were not to be taken into account in assessing the defendan's guilt or innocence under the current indictment. ^[2]

The facts in the cases now here are these. In Spencer (No. 68), the petitioner ^[3] was indicted for murder, with malice, of his common-law wife. The indictment alleged that the defendant had previously been convicted of murder with malice, a factor which if proved would entitle the jury to sentence the defendant to death or to prison for not less than life under Texas Pen.Code Art. 64, n. 1, supra, whereas if the prior conviction was not proved the jury could fix the penalty at death or a prison term of not less than two years, see Texas Pen.Code Art. 1257. Spencer made timely objections to the reading to the jury of that portion of the indictment, and objected as well to the introduction of evidence to show his prior conviction. The jury was charged that if it found that Spencer had maliciously killed the victim, and that he had previously been convicted of murder with malice, the jury was to 'assess his punishment at death or confinement in the penitentiary for life.' The jury was instructed as well that it should not consider the prior conviction as any evidence of the defendant's guilt on the charge on which he was being tried. Spencer was found guilty and sentenced to death.

In Bell (No. 69), the petitioner was indicted for robbery, and the indictment alleged that he had been previously convicted of bank robbery in the United States District Court for the Southern District of Texas. Bell moved to quash the indictment on the ground, similar to that in Spencer, that the allegation and reading to the jury of a prior offense was prejudicial and would deprive him of a fair trial. Similar objections were made to the offer of documentary evidence to prove the prior conviction. The court's charge to the jury stated that the prior conviction should not be considered in passing upon the issue of guilt or innocence on the primary charge. The sentencing procedure in this non-capital case was somewhat different from that in Spencer. The jury was instructed that if it found the defendant guilty only of the present robbery charge, it could fix his sentence at not less than five years nor more than life. See Texas Pen. Code Art. 1408. But if it found that Bell had also been previously convicted as alleged in the indictment, it should bring in a verdict of guilty of robbery by assault and a further finding that the allegations 'charging a final conviction for the offense of bank robbery are true.' The jury so found, and the judge fixed punishment, set by law for such a prior offender, at life imprisonment in the penitentiary. See Texas Pen. Code Art. 62, note 1, supra.

The Reed case (No. 70), ^[4] involving a third-offender prosecution for burglary, see Texas Pen.Code Art. 63, n. 1, supra, entailed the same practice as followed in Bell.

The common and sole constitutional claim made in these cases is that Texas' use of prior convictions in the current criminal trial of each petitioner was so egregiously unfair upon the issue of guilt or innocence as to offend the provisions of the Fourteenth Amendment that no State shall 'deprive any person of life, liberty, or property, without due process of law * * *.' We took these cases for review, 382 U.S. 1022, 1023, 1025, 86 S.Ct. 649, 15 L.Ed.2d 537, 538, 539, because the courts of appeals have divided on the issue. ^[5] For reasons now to follow we affirm the judgments below.

The road to decision, it seems to us, is clearly indicated both by what the petitioners in these cases do not conted and by the course of the authorities in closely related fields. No claim is made here that recidivist statutes are themselves unconstitutional, nor could there be under our cases. Such statutes and other enhanced-sentence laws, and procedures designed to implement their underlying policies, have been enacted in all the States, ^[6] and by the Federal Government as well. See e.g., 18 U.S.C. § 2114; Fed.Rule Crim.Proc. 32(c)(2); D.C.Code § 22-104 (1961). Such statutes, though not in the precise procedural circumstances here involved, have been sustained in this Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities. Moore v. State of Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446.

Nor is it contended that it is unconstitutional for the jury to assess the punishment to be meted out to a defendant in a capital or other criminal case, or to make findings as to whether there was or was not a prior conviction even though enhanced punishment is left to be imposed by the judge. The States have always been given wide leeway in dividing responsibility between judge and jury in criminal cases. Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; cf. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4; Giaccio v. State of Pennsylvania, 382 U.S. 399, 405, n. 8, 86 S.Ct. 518, 522, 15 L.Ed.2d 447.

Petitioners do not even appear to be arguing that the Constitution is infringed if a jury is told of a defendant's prior crimes. The rules concerning evidence of prior offenses are complex, and vary from jurisdiction to jurisdiction, but they can be summarized broadly. Because such evidence is generally recognized to have potentiality for prejudice, it is usually excluded except when it is particularly probative in showing such things as intent. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919, Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice, Moss v. State, Tex.Cr.App., 364 S.W.2d 389; motive, Moses v. State, 168 Tex. Cr.R. 409, 328 S.W.2d 885; a system of criminal activity, Haley v. State, 87 Tex.Cr.R. 519, 223 S.W. 202; or when the defendant has raised the issue of his character, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, Perkins v. State, 152 Tex.Cr.R. 321, 213 S.W.2d 681; or when the defendant has testified and the State seeks to impeach his credibility, Giacone v. State, 124 Tex.Cr.R. 141, 62 S.W.2d 986. ^[7]

Under Texas law the prior convictions of the defendants in the three cases before the Court today might have been admissible for any one or more of these universally accepted reasons. In all these situations, as under the recidivist statutes, the jury learns of prior crimes committed by the defendant, but the conceded possibility of prejudice is believed to be outweighed by the validity of the State's purpose in permitting introduction of the evidence. The defendants' interests are protected by limiting instructions, see Giacone v. State, supra, and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence. See Spears v. State, 153 Tex.Cr.R. 14, 216 S.W.2d 812; 1 Wigmore, Evidence § 29a (3d ed. 1940); Uniform Rule of Evidence 45; Model Code of Evidence, Rule 303.

This general survey sufficiently indicates that the law of evidence, which has been chiefly developed by the States, has evolved a set of rules designed to reconcile the possibility that this type of information will have some prejudicial effect with the admitted usefulness it has as a factor to be considered by the jury for any one of a large number of valid purposes. The evidence itself is usually, and in recidivist cases almost always, of a documentary kind, and in the cases before us there is no claim that its presentation was in any way inflammatory. Compare Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence. For example, all joint trials, whether of several codefendants or of one defendant charged with multiple offenses, furnish inherent opportunities for unfairness when evidence submitted as to one crime (on which there may be an acquittal) may influence the jury as to a totally different charge. See Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278; cf. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. This type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person, and connected crimes against different defendants, in the same trial is a valid governmental interest.

Such an approach was in fact taken by the Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. There, in a federal prosecution, the Government was permitted to cross-examine defense witnesses as to the defendant's character and to question them about a prior conviction. The Court, recognizing the prejudicial effect of this evidence, noted that 'limiting instructions on this subject are no more difficult to comprehend or apply than those upon various other subjects;' id., at 485, 69 S.Ct. at 223, and held that this Court was not the best forum for developing rules of evidence, and would, therefore, not proscribe the long-standing practice at issue. A fortiori, this reasoning applies in the cases before us today which arise not under what has been termed the supervisory power of this Court over proceedings in the lower federal courts, see Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629, but in the form of a constitutional claim that would require us to fashion rules of procedure and evidence in state courts. It is noteworthy that nowhere in Michelson did the Court or dissenting opinions approach the issue in constitutional terms.

It is contended nonetheless that in this instance the Due Process Clause of the Fourteenth Amendment requires the exclusion of prejudicial evidence of prior convictions even though limiting instructions are given and even though a valid state purpose enforcement of the habitual-offender statute-is served. We recognize that the use of prior-crime evidence in a one-stage recidivist trial may be thought to represent a less cogent state interest than does its use for other purposes, in that other procedures for applying enhancement-of-sentence statutes may be available to the State that are not suited in the other situations in which such evidence is introduced. We do not think that this distinction should lead to a different constitutional result.

Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. See, e.g., Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; see Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; cf. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure. And none of the specific provisions of the Constitution ordains this Court with such authority. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases. As Mr. Justice Cardozo had occasion to remark, a state rule of law 'does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at bar.' Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. See also Buchalter v. People of State of New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L.Ed. 1492.

Petitioners' reliance on Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, is misplaced. There the Court held unconstitutional the New York procedure leaving to the trial jury alone the issue of the voluntariness of a challenged confession, an area of law that has been characterized by the development of particularly stiff constitutional rules. See Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Court held that a judicial ruling was first required to determine whether as a matter of law-federal constitutional law-the confession could be deemed voluntary. This requirement of a threshold hearing before a judge on the federal question of voluntariness lends no solid support to the argument made here that a two-stage jury trial is required whenever a State seeks to invoke an habitual-offender statute. It is true that the Court in Jackson supported its holding by reasoning that a general jury verdict was not a 'reliable' vehicle for determining the issue of voluntariness because jurors might have difficulty in separating the issues of voluntariness from that of guilt or innocence. But the emphasis there was on protection of a specific constitutional right, and the Jackson procedure was designed as a specific remedy to ensure that an involuntary confession was not in fact relied upon by the jury. In the procedures before us, in contrast, no specific federal right-such as that dealing with confessions-is involved; reliance is placed solely on a general 'fairness' approach. In this area the Court has always moved with caution before striking down state procedures. It would be extravagant in the extreme to take Jackson as evincing a general distrust on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as standing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit evidence to its rightful purpose. Compare Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302. ^[8]

It is fair to say that neither the Jackson case nor any other due process decision of this Court even remotely supports the proposition that the States are not free to enact habitual-offender statutes of the type Texas has chosen and to admit evidence during trial tending to prove allegations required under the statutory scheme.

Tolerance for a spectrum of state procedures dealing with a common problem of law enforcement is especially appropriate here. The rate of recidivism is acknowledged to be high, ^[9] a wide variety of methods of dealing with the problem exists, and experimentation is in progress. The common-law procedure for applying recidivist statutes, used by Texas in the cases before us, which requires allegations and proof of past convictions in the current trial, is of course, the simplest and best known procedure. ^[10] Some jurisdictions deal with the recidivist issue in a totally separate proceeding, see, e.g., Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, and as already observed (n. 2, supra) Texas to some extent has recently changed to that course. In some States such a proceeding can be instituted even after conviction on the new substantive offense, see Ore.Rev.Stat. § 168.040 (1959); Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. The method for determining prior convictions varies also between jurisdictions affording a jury trial on this issue, e.g., Fla.Stat.Ann. § 755.11 (1965); and those leaving that question to the court, see, e.g., Fed.Rule Crim.Proc. 32(a); Mo.Rev.Stat. § 556.280(2) (1959). ^[11] Another procedure, used in Great Britain and Connecticut, see, Coinage Offences Act, 1861, 24 & 25 Vict., c. 99; State v. Ferrone, 96 Conn. 160, 113 A. 452, requires that the indictment allege both the substantive crime and the prior conviction, that both parts be read to the defendant prior to trial, but that only the allegations relating to the substantive crime be read to the jury. If the defendant is convicted, the prior-offense elements are then read to the jury which considers any factual issues raised. Yet another system relies upon the parole authorities to withhold parole in accordance with their findings as to prior convictions. See, e.g., N.J.Stat.Ann. § 30:4-123.12 (1964). And within each broad approach described, other variations occur.

A determination of the 'best' recidivist trial procedure necessarily involves a consideration of a wide variety of criteria, such as which method provides most adequate notice to the defendant and an opportunity to challenge the accuracy and validity of the alleged prior convictions, which method best meets the particular jurisdiction's allocation of responsibility between court and jury, which method is best accommodated to the State's established trial procedures, and of course which method is apt to be the least prejudicial in terms of the effect of prior-crime evidence on the ultimate issue of guilt or innocence. To say that the two-stage jury trial in the English-Connecticut style is probably the fairest, as some commentators and courts have suggested, ^[12] and with which we might well agree were the matter before us in a legislative or rule-making context, is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment. Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure. ^[13] With recidivism the major problem that it is, substantial changes in trial procedure in countless local courts around the country would be required were this Court to sustain the contentions made by these petitioners. This we are unwilling to do. To take such a step would be quite beyond the pale of this Court's proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon the constitutional power of States to promulgate their own rules of evidence to try their own state-created crimes in their own state courts, so long as their rules are not prohibited by any provision of the United States Constitution, which these rules are not. The judgments in these cases are affirmed.

Affirmed.

Notes

1. The recidivist statutes here involved are Articles 62, 63, and 64 of the Vernon's Ann.Texas Pen.Code (1952).
2. These procedures were embodies in Vernon's Ann.Texas Code Crim.Proc., Art. 642 (1941), providing as follows: 'A jury being impaneled in any criminal action, the cause shall proceed in the following order: 1. The indictment or information shall be read to the jury by the attorney prosecuting. * * * 4. The testimony on the part of the State shall be offered.' By judicial gloss it appears that, at least in noncapital cases, a defendant by stipulating his prior convictions could keep knowledge of them away from the jury. See Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864. But see the decision below in Spencer v. State, Tex.Cr.App., 389 S.W.2d 304, for the inapplicability of the stipulation rule in capital cases. In the view we take of the constitutional issue before us we consider it immaterial whether or not that course was open to any of the petitioners. Subsequent to the present convictions Texas has passed a new law respecting the procedure governing recidivist cases, the effect of which seems to be that except in capital cases the jury is not given the recidivist issue until it has first found the defendant guilty under the principal charge. Vernon's Ann.Texas Code Crim.Proc., Art. 36.01, effective January 1, 1966. Since these cases were all tried under the older procedure, the new statute is not before us.
3. The question of whether Spencer is properly here as an appeal, a matter which we postponed to consideration of the merits, is a tangled one. See Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239; Hart & Wechsler, The Federal Courts and the Federal System 565-567 (1953). Rather than undertake to resolve it, we think it more profitable to dismiss this appeal, treat it as a petition for certiorari, 28 U.S.C. § 2103, and grant the petition, particularly as there is pending in the Court Spencer's timely filed alternative petition for certiorari, which has been held to await the outcome of this appeal. Accordingly we have in this opinion referred to Spencer as a 'petitioner.'
4. The Reed case, unlike the Spencer and Bell cases which come to us from the Court of Criminal Appeals of Texas, is here from a judgment of the United States Court of Appeals for the Fifth Circuit affirming the District Court's dismissal of a writ of habeas corpus on the ground that the Texas recidivist procedure did not offend the United States Constitution. 343 F.2d 723.
5. The Third Circuit in United States ex rel. Scoleri v. Banmiller, 310 F.2d 720, held a similar Pennsylvania procedure, when applied in capital cases, unconstitutional. The Fourth Circuit held a comparable Maryland recidivist practice unconstitutional in all cases. Lane v. Warden, 320 F.2d 179. The Fifth Circuit in Breen v. Beto, 341 F.2d 96, and again in the Reed case before us today, 343 F.2d 723, and the Eighth Circuit in Wolfe v. Nash, 313 F.2d 393, have held such procedures constitutional. The Ninth Circuit in Powell v. United States, 35 F.2d 941, sustained the procedure in the context of a second offense under § 29 of the National Prohibition Act, 41 Stat. 316.
6. See annotations at 58 A.L.R. 20, 82 A.L.R. 345, 79 A.L.R.2d 826; Note, Recidivist Procedures, 40 N.Y.U.L.Rev. 332 (1965).
7. These Texas cases reflect the rules prevailing in nearly all common-law jurisdictions. See generally McCormick, Evidence §§ 157-158 (1954); 1 Wharton's Criminal Evidence §§ 221-243 (Anderson ed. 1955); 1 Wigmore, Evidence §§ 215-218 (3d ed. 1940 and 1964 Supp.); Note, Other Crimes Evidence at Trial, 70 Yale L.J. 763 (1961). For the English rules, substantially similar, see Cross, Evidence 292-333 (2d ed. 1963). Recent commentators have criticized the rule of general exclusion, and have suggested a broader range of admissibility. Model Code of Evidence, Rule 311; Carter, The Admissibility of Evidence of Similar Facts, 69 L.Q.Rev. 80 (1953), 70 L.Q.Rev. 214 (1954); Note, Procedural Protections of the Criminal Defendant, 78 Harv.L.Rev. 426, 435-451 (1964). For the use of this type of evidence in continental jurisdictions, see Glanville Williams, The Proof of Guilt 181 (2d ed. 1958); 1 Wigmore, supra § 193.
8. Indeed the most recent scholarly study of jury behavior does not sustain the premise that juries are especially prone to prejudice when prior-crime evidence is admitted as to credibility. Kalven & Zeisel, The American Jury (1966). The study contrasts the effect of such evidence on judges and juries and concludes that 'Neither the one nor the other can be said to be distinctively gullible or skeptical.' Id., at 180.
9. See 'Careers in Crime,' a statistical survey collected in Uniform Crime Reports for the United States-1965, p. 27 (Dept. of Justice, 1966). The Statistical Abstract of the United States, 1966, reveals that 62% of prisoners committed to federal prisons in the year ending June 30, 1965, had been previously committed. Id., at 163.
10. For a survey and analysis of the various recidivist procedures, see Note, Recidivist Procedures, 40 N.Y.U.L.Rev. 332 (1965); see also Note, The Pleading and Proof of Prior Convictions in Habitual Criminal Prosecutions, 33 N.Y.U.L.Rev. 210 (1958).
11. Texas juries have had authority to impose punishment since 1846, but in all but 11 States this power is held by the judge. See Reid, The Texas Code of Criminal Procedure, 44 Tex.L.Rev. 983, 1008-1009 (1966).
12. See, e.g., Lane v. Warden, 4 Cir., 320 F.2d 179; Note, 40 N.Y.U.L.Rev. 332, 348 (1965). Other commentators have cautioned against a too hasty adoption of the two-stage trial. See the Second Circuit decision in United States v. Curry, 358 F.2d 904, 914-915, where the court discussed the procedure as it applied in federal capital cases, and concluded: 'Given the many considerations which may affect the necessity for a two-stage trial in each case, and considering the questionable desirability of this untested technique, we think it best to leave this question to the discretion of the trial court.' See also the discussion of the practical and administrative disadvantages of such a procedure in Frady v. United States, 121 U.S.App.D.C. 78, 108-109, 348 F.2d 84, 114-115 (dissenting opinion). We have been presented with no positive information concerning actual experience with a separate penalty procedure that would bear on a decision to impose it upon all the States as a matter of constitutional law. One study suggests that as a practical matter such a procedure has not proved helpful to defendants: 'The California experience, dating back to 1957, has rather been that defense counsel have often neglected to prepare adequately for the penalty phase and have exhibited a lack of sophistication concerning what facts should be advanced as mitigating. Apparently, the approach of defense lawyers has been to devote the bulk of their efforts to the substantive issue of guilt and to relegate the penalty phase to a minor role. On the other hand, the prosecution has taken complete advantage of the penalty phase and has attempted to marshal and to present to the jury all of the aggravating circumstances that exist.' Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 167 (1964).
13. In cases where, as in Spencer, a jury itself fixes the penalty, the effect of the emphasis in THE CHIEF JUSTICE'S separate opinion upon the use of a stipulation would in reality be to require, as a matter of federal constitutional law, a two-stage jury trial. For a stipulation no less than evidentiary proof would bring the fact of prior convictions before the trial jury.