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STEVENS, J., dissenting

in grand jury proceedings. Such a sharp break with the traditional role of the federal judiciary is unprecedented, unwarranted, and unwise. Unrestrained prosecutorial misconduct in grand jury proceedings is inconsistent with the administration of justice in the federal courts and should be redressed in appropriate cases by the dismissal of indictments obtained by improper methods.12

III What, then, is the proper disposition of this case? I agree with the Government that the prosecutor is not required to place all exculpatory evidence before the grand jury. A grand jury proceeding is an ex parte investigatory proceeding to determine whether there is probable cause to believe a violation of the criminal laws has occurred, not a trial. Requiring the prosecutor to ferret out and present all evidence that could be used at trial to create a reasonable doubt as to the defendant's guilt would be inconsistent with the purpose of the grand jury proceeding and would place significant burdens on the investigation. But that does not mean that the prosecutor may mislead the grand jury into believing that there is probable cause to indict by withholding clear evidence to the contrary. I thus agree with the Department of Justice that “when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise dis

12 Although the Court's opinion barely mentions the fact that the grand jury was intended to serve the invaluable function of standing between the accuser and the accused, I must assume that in a proper case it will acknowledge—as even the Solicitor General does—that unrestrained prosecutorial misconduct in grand jury proceedings “could so subvert the integrity of the grand jury process as to justify judicial intervention. Cf. Franks v. Delaware, 438 U. S. 154, 164-171 (1978) (discussing analogous considerations in holding that a search warrant affidavit may be challenged when supported by deliberately false police statements).” Brief for United States 22, n. 8.

STEVENS, J., dissenting

close such evidence to the grand jury before seeking an indictment against such a person.” U. S. Dept. of Justice, United States Attorneys' Manual (9–11.233, p. 88 (1988).

Although I question whether the evidence withheld in this case directly negates respondent's guilt,13 I need not resolve my doubts because the Solicitor General did not ask the Court to review the nature of the evidence withheld. Instead, he asked us to decide the legal question whether an indictment may be dismissed because the prosecutor failed to present exculpatory evidence. Unlike the Court and the Solicitor General, I believe the answer to that question is yes, if the withheld evidence would plainly preclude a finding of probable cause. I therefore cannot endorse the Court's opinion.

More importantly, because I am so firmly opposed to the Court's favored treatment of the Government as a litigator, I would dismiss the writ of certiorari as improvidently granted.

13 I am reluctant to rely on the lower courts' judgment in this regard, as they apparently applied a more lenient legal standard. The District Court dismissed the indictment because the "information withheld raises reasonable doubt about the Defendant's intent to defraud,” and thus “renders the grand jury's decision to indict gravely suspect.” App. to Pet. for Cert. 26a. The Court of Appeals affirmed this decision because it was not "clearly erroneous.” 899 F. 2d 898, 902–904 (CA10 1990).

Syllabus

FOUCHA v. LOUISIANA

CERTIORARI TO THE SUPREME COURT OF LOUISIANA

No. 90–5844. Argued November 4, 1991–Decided May 18, 1992 Under Louisiana law, a criminal defendant found not guilty by reason of

insanity may be committed to a psychiatric hospital. If a hospital review committee thereafter recommends that the acquittee be released, the trial court must hold a hearing to determine whether he is dangerous to himself or others. If he is found to be dangerous, he may be returned to the hospital whether or not he is then mentally ill. Pursuant to this statutory scheme, a state court ordered petitioner Foucha, an insanity acquittee, returned to the mental institution to which he had been committed, ruling that he was dangerous on the basis of, inter alia, a doctor's testimony that he had recovered from the drug induced psychosis from which he suffered upon commitment and was “in good shape” mentally; that he had, however, an antisocial personality, a condition that is not a mental disease and is untreatable; that he had been involved in several altercations at the institution; and that, accordingly, the doctor would not “feel comfortable in certifying that he would not be a danger to himself or to other people.” The State Court of Appeal refused supervisory writs, and the State Supreme Court affirmed, holding, among other things, that Jones v. United States, 463 U. S. 354, did not require Foucha's release and that the Due Process Clause of the Fourteenth Amendment was not violated by the statutory provision permitting confinement of an insanity acquittee based on dangerous

ness alone. Held: The judgment is reversed. 563 So. 2d 1138, reversed.

JUSTICE WHITE delivered the opinion of the Court with respect to Parts I and II, concluding that the Louisiana statute violates the Due Process Clause because it allows an insanity acquittee to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness. Although Jones, supra, acknowledged that an insanity acquittee could be committed, the Court also held that, as a matter of due process, he is entitled to release when he has recovered his sanity or is no longer dangerous, id., at 368, i. e., he may be held as long as he is both mentally ill and dangerous, but no longer. Here, since the State does not contend that Foucha was mentally ill at the time of the

Syllabus

trial court's hearing, the basis for holding him in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis. There are at least three difficulties with the State's attempt to perpetuate his confinement on the basis of his antisocial personality. First, even if his continued confinement were constitutionally permissible, keeping him against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness. Vitek v. Jones, 445 U. S. 480, 492. Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed. See, e. g., Jones v. United States, supra, at 368. Second, if he can no longer be held as an insanity acquittee in a mental hospital, he is entitled to constitutionally adequate procedures to establish the grounds for his confinement. Jackson v. Indiana, 406 U. S. 715. Third, the substantive component of the Due Process Clause bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them. Zinermon v. Burch, 494 U. S. 113, 125. Although a State may imprison convicted criminals for the purposes of deterrence and retribution, Louisiana has no such interest here, since Foucha was not convicted and may not be punished. Jones, 463 U. S., at 369. Moreover, although the State may confine a person if it shows by clear and convincing evidence that he is mentally ill and dangerous, id., at 362, Louisiana has not carried that burden here. Furthermore, United States v. Salerno, 481 U. S. 739—in which this Court held that in certain narrow circumstances pretrial detainees who pose a danger to others or the community may be subject to limited confinement—does not save the state statute. Unlike the sharply focused statutory scheme at issue in Salerno, the Louisiana scheme is not carefully limited. Pp. 75–85.

WHITE, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined, and an opinion with respect to Part III, in which BLACKMUN, STEVENS, and SOUTER, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 86. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined, post, p. 90. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 102.

James P. Manasseh argued the cause for petitioner. With him on the briefs was Martin E. Regan, Jr.

Opinion of the Court

Pamela S. Moran argued the cause for respondent. With her on the brief was Harry F. Connick.*

ous.

JUSTICE WHITE delivered the opinion of the Court, except as to Part III.

When a defendant in a criminal case pending in Louisiana is found not guilty by reason of insanity, he is committed to a psychiatric hospital unless he proves that he is not danger

This is so whether or not he is then insane. After commitment, if the acquittee or the superintendent begins release proceedings, a review panel at the hospital makes a written report on the patient's mental condition and whether he can be released without danger to himself or others. If release is recommended, the court must hold a hearing to determine dangerousness; the acquittee has the burden of proving that he is not dangerous. If found to be dangerous, the acquittee may be returned to the mental institution whether or not he is then mentally ill. Petitioner contends that this scheme denies him due process and equal protection because it allows a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness.

I

Petitioner Terry Foucha was charged by Louisiana authorities with aggravated burglary and illegal discharge of a firearm. Two medical doctors were appointed to conduct a pretrial examination of Foucha. The doctors initially reported, and the trial court initially found, that Foucha lacked mental capacity to proceed, App. 8–9, but four months later the trial court found Foucha competent to stand trial, id., at 4-5. The doctors reported that Foucha was unable to distin

*Briefs of amici curiae urging reversal were filed for the American Orthopsychiatric Association et al. by James W. Ellis and Barbara E. Bergman; and for the American Psychiatric Association by Joel I. Klein.

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