Opinion of the Court. 337 U.S. judge sentenced him to death. The Court of Appeals of New York affirmed. 298 N. Y. 803, 83 N. E. 2d 698. On appeal to this Court, affirmed, p. 252. John F. Finerty argued the cause for appellant. With him on the brief was Edward H. Levine. Solomon A. Klein argued the cause for respondent. With him on the brief was Miles F. McDonald. MR. JUSTICE BLACK delivered the opinion of the Court. A jury in a New York state court found appellant guilty of murder in the first degree.1 The jury recommended life imprisonment, but the trial judge imposed sentence of death. In giving his reasons for imposing the death sentence the judge discussed in open court the evidence upon which the jury had convicted stating that this evidence had been considered in the light of additional information obtained through the court's "Probation Department, and through other sources." Consideration of 1 "The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed: "2. By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a 'felony, either upon or affecting theperson killed or otherwise. . . ." New York Penal Law § 1044. 2 "Murder in the first degree is punishable by death, unless the jury recommends life imprisonment as provided by section ten hundred forty-five-a." New York Penal Law § 1045. "A jury finding a person guilty of murder in the first degree, as defined by subdivision two of section ten hundred forty-four, may, as a part of its verdict, recommend that the defendant be imprisoned for the term of his natural life. Upon such recommendation, the court may sentence the defendant to imprisonment for the term of his natural life." New York Penal Law § 1045-a: 241 Opinion of the Court. this additional information was pursuant to § 482 of New York Criminal Code which provides: "... Before rendering judgment or pronouncing sentence the court shall cause the defendant's previous criminal record to be submitted to it, including any reports that may have been made as a result of a mental, phychiatric [sic] or physical examination of such person, and may seek any information that will aid the court in determining the proper treatment of such defendant." The Court of Appeals of New York affirmed the conviction and sentence over the contention that as construed and applied the controlling penal statutes are in violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States "in that the sentence of death was based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for crossexamination or rebuttal . . . .” 298 N. Y. 803, 804, 83 N. E. 2d 698, 699. Because the statutes were sustained over this constitutional challenge the case is here on appeal under 28 U. S. C. § 1257 (2). The narrow contention here makes it unnecessary to set out the facts at length. The record shows a carefully conducted trial lasting more than two weeks in which appellant was represented by three appointed lawyers who conducted his defense with fidelity and zeal. The evidence proved a wholly indefensible murder committed by a person engaged in a burglary. The judge instructed the jury that if it returned a verdict of guilty as charged, without recommendation for life sentence, "The Court must impose the death penalty," but if such recommendation was made, "the Court may impose a life sentence." The judge went on to emphasize that "the Court is not bound to accept your recommendation." Opinion of the Court. 337 U.S. About five weeks after the verdict of guilty with recommendation of life imprisonment, and after a statutory pre-sentence investigation report to the judge, the defendant was brought to court to be sentenced. Asked what he had to say, appellant protested his innocence. After each of his three lawyers had appealed to the court to accept the jury's recommendation of a life sentence, the judge gave reasons why he felt that the death sentence should be imposed. He narrated the shocking details of the crime as shown by the trial evidence, expressing his own complete belief in appellant's guilt. He stated that the pre-sentence investigation revealed many material facts concerning appellant's background which though relevant to the question of punishment could not properly have been brought to the attention of the jury in its consideration of the question of guilt. He referred to the experience appellant "had had on thirty other burglaries in and about the same vicinity" where the murder had been committed. The appellant had not been convicted of these burglaries although the judge had information that he had confessed to some and had been identified as the perpetrator of some of the others. The judge also referred to certain activities of appellant as shown by the probation report that indicated appellant possessed "a morbid sexuality" and classified him as a "menace to society." The accuracy of the statements made by the judge as to appellant's background and past practices was not challenged by appellant or his counsel, nor was the judge asked to disregard any of them or to afford appellant a chance to refute or discredit any of them by cross-examination or otherwise. The case presents a serious and difficult question. The question relates to the rules of evidence applicable to the manner in which a judge may obtain information to guide him in the imposition of sentence upon an already convicted defendant. Within limits fixed by statutes, 241 Opinion of the Court. New York judges are given a broad discretion to decide the type and extent of punishment for convicted defendants. Here, for example, the judge's discretion was to sentence to life imprisonment or death. To aid a judge in exercising this discretion intelligently the New York procedural policy encourages him to consider information about the convicted person's past life, health, habits, conduct, and mental and moral propensities. The sentencing judge may consider such information even though obtained outside the courtroom from persons whom a defendant has not been permitted to confront or crossexamine. It is the consideration of information obtained by a sentencing judge in this manner that is the basis for appellant's broad constitutional challenge to the New York statutory policy. Appellant urges that the New York statutory policy is in irreconcilable conflict with the underlying philosophy of a second procedural policy grounded in the due process of law clause of the Fourteenth Amendment. That policy as stated in In re Oliver, 333 U. S. 257, 273, is in part that no person shall be tried and convicted of an offense unless he is given reasonable notice of the charges against him and is afforded an opportunity to examine adverse witnesses. That the due process clause does provide these salutary and time-tested protections where the question for consideration is the guilt of a defendant seems entirely clear from the genesis and historical evolution of the clause. See, e. g., Chambers v. Florida, 309 U. S. 227, 236-237, and authorities cited in note 10. 3 Other due process requirements mentioned in the Oliver case were that the defendant should be permitted to offer evidence in his own behalf and Le represented by counsel. Appellant, however, was represented by counsel both when tried and sentenced, and the sentencing judge did not decline to permit introduction of any evidence. In response to the judge's inquiry, statements were made by appellant and his counsel. Opinion of the Court. 337 U.S. Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary procedural limitations. But both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. Out-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders. A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information "as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant In addition to the historical basis for different evidentiary rules governing trial and sentencing procedures there are sound practical reasons for the distinction. In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evi * Courts have treated the rules of evidence applicable to the trial procedure and the sentencing process differently. See, e. g., Snyder v. Massachusetts, 291 U. S. 97, 107, 128-129; Graham v. West Virginia, 224 U. S. 616, 619; United States v. Dalhover, 96 F. 2d 355, 359-360. But cf. State v. Stevenson, 64 W. Va. 392, 62 S. E. 688. 5 See cases collected in 14 Am. & Eng. Ann. Cas. 968, et seq.; 77 A. L. R. 1211, et seq.; 86 A. L. R. 832, et seq. See also Note, The Admissibility of Character Evidence in Determining Sentence, 9 U. of Chi. L. Rev. 715 (1942). See Pound, Criminal Justice in America 178 (1930). 'See Stephan v. United States, 133 F. 2d 87, 100. See also 18 U.S. C. § 3655. |