John Marshall Harlan II

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.↑ See 'Careers in Crime,' a statistical survey collected in Uniform Crime Reports for the United States-1965, p. ”

“ 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.↑ 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) .↑ 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) . ”