Montana v. Egelhoff (95-566), 518 U.S. 37 (1996).
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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.


No. 95-566


on writ of certiorari to the supreme court of montana

[June 13, 1996]

Justice Scalia announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Thomas join.

We consider in this case whether the Due Process Clause is violated by Montana Code Annotated §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."

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).

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.

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. §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. §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.

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 §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).

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. [n.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:

"[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).

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:

"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.

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:

"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).

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).

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:

"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).

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

" `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).

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).

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.

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. [n.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").

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 justification [n.3] --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). [n.4]

There is, in modern times, even more justification for laws such as §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. [n.5]

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. [n.6]

The Supreme Court of Montana's conclusion that Mont. Code Ann. §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.

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:

"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).

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.

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.

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 §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.

Recognizing that Sandstrom is not directly on point, the Supreme Court of Montana described §45-2-203 as a burden reducing, rather than burden shifting, 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).

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:

"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.

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.

* * *

"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.

It is so ordered.


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 §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. §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. §5-2-207 (1993)); Delaware, see Wyant v. State, 519 A. 2d 649, 651 (1986) (interpreting Del. Code. Ann., Tit. 11, §421 (1995)); Georgia, see Foster v. State, 258 Ga. 736, 742-745, 374 S. E. 2d 188, 194-196 (1988) (interpreting Ga. Code Ann. §16-3-4 (1992)), cert. denied, 490 U.S. 1085 (1989); Hawaii, see Haw. Rev. Stat. §702-230(2) (1993), State v. Souza, 72 Haw. 246, 248, 813 P. 2d 1384, 1386 (1991) (§702-230(2) is constitutional); Mississippi, see Lanier v. State, 533 So. 2d 473, 478-479 (1988); Missouri, see Mo. Rev. Stat. §562.076 (1994), State v. Erwin, 848 S. W. 2d 476, 482 (§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. §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 §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 §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.