FindLaw > Criminal Law Summaries > Carmell v. Texas

EX POST FACTO CLAUSE — ALTERING THE LEGAL RULES OF EVIDENCE

Case: Carmell v. Texas

Issue: Under the Constitution’s Ex Post Facto Clause, can a statutory amendment which authorizes conviction of certain sexual offenses on the victim's testimony alone, be applied retroactively to conduct which occurred prior to the amendment, at a time when the statute in question required that the victim's testimony be corroborated in order to convict?

Facts: In 1996, Scott Leslie Carmell was convicted on 15 counts of various sexual offenses against his stepdaughter. The offenses occurred over a period of four years from February 1991 to March 1995. During this period, the victim was 12 to 16 years old. Until 1993, a Texas statute stated that conviction of a sexual offense was supportable on the uncorroborated testimony of the victim if the victim informed any other person within six months of the alleged offense or if the victim was younger than 14 years old. In 1993, Texas amended this statute to increase the minimum age exception from 14 to 18. Four of the 15 counts on which Carmell was convicted relied solely on testimony offered by the victim when she was older than 14 and did not inform anyone of the conduct within six months. Thus, those four convictions depend upon the applicability of the 1993 amendment to conduct which occurred from 1991-1993. Carmell appealed his conviction on these four counts, claiming that allowing his conviction solely on the basis of his stepdaughter’s testimony when she was over 14 but under 18 violated the Ex Post Facto Clause. The Court of Appeals for the Second District of Texas in Fort Worth denied his appeal, holding that the 1993 amendment only removed restrictions governing the competency of witnesses and was therefore a procedural rule, not subject to the Ex Post Facto Clause.

Holding: The Texas amendment alters the legal rules of evidence such that less testimony is required to convict an individual of a sexual offense. It is therefore subject to the Ex Post Facto Clause, and applying it retroactively to Carmell is unconstitutional.

Reasoning: The Court first discussed the four categories of laws which are subject to the Ex Post Facto Clause as outlined in the seminal case,  Calder v. Bull, 3 Dall. 386, 390 (1798):

1. Any law which makes an action criminal which was previously legal;
2. Any law which aggravates a crime or makes it greater than it was when it was committed;
3. Any law which increases the punishment for a crime; and,
4. Any law that alters the legal rules of evidence and requires "less or different testimony" to convict the offender.

It is the fourth category of law that is at issue in this case. To explain the nature and purpose of this category, the Court described in detail the case of Sir John Fenwick, who was beheaded for conspiring to restore James II to the throne of England after the latter was deposed by King William III in the Revolution of 1688. At the time of Fenwick's indictment, England required testimony of two witnesses to convict of high treason. Between his indictment and trial, Fenwick managed to bribe one of the only two witnesses who could testify against him. To prevent the combination of bribery and the two witness rule from allowing Fenwick to escape, Parliament subsequently passed a bill against Fenwick, which was both a Bill of Attainder and a law Ex Post Facto, which allowed his conviction on the testimony of one witness. Fenwick was subsequently executed.

The Court held that the application of the 1993 Texas law to Carmell was similar to the bill of attainder passed against Fenwick because both laws allowed the respective defendants to be convicted on less evidence than was required at the time of the crime. In Carmell’s case, the victim’s testimony alone, rather than her testimony plus "outcry" or other corroborating testimony, was now enough to convict him on four counts. For Fenwick, the testimony of only one witness, rather than two, was sufficient. The Court concluded that the Texas law fit into the fourth category, and that its application to Carmell violated the Ex Post Facto Clause.

In so holding, the Court rejected arguments that the fourth category of laws subject to the Ex Post Facto Clause had previously been abandoned by the Court in  Collins v. Youngblood, 497 U.S. 37 (1990). That case began by listing the four categories from Calder and calling them the "exclusive definition" of ex post facto laws. It then quoted from the opinion in  Beazell v. Ohio, 269 U.S. 167 (1925), which the Collins Court called a "faithful rendition" of the original understanding of the Ex Post Facto Clause. Beazell, however, discussed only the first three categories. In a footnote, the Collins opinion noted that Beazell omitted reference to the fourth category, which "was not intended to prohibit the application of new evidentiary rules" to crimes committed before such new rules went into effect.

The Court in Carmell, however, rejected the argument that the Collins footnote overruled Calder. The issue in Beazell did not concern a law which changed the "quantum and kind of proof required to establish guilt." It is difficult to accept, therefore, that the Collins Court intended to overturn Calder’s four categories of ex post facto laws by discussing, in a footnote only, a single case from 1925 which did not even implicate the fourth category.

Texas also argued that the fourth category, if upheld, applies only to laws which alter the burden of proof. In  Cummings v. Missouri, 4 Wall. 277 (1867), the Court invalidated a law which punished individuals who did not swear an oath of loyalty to the United States. In so ruling, the Court held that this law switched the burden of proof to the defendant and therefore was an ex post facto law under the fourth category. Based on this case, Texas argued that because the statutory amendment at issue did not shift the burden of proof away from the prosecution, it was not within the fourth category of ex post facto laws. The Court rejected this argument, noting that Cummings was but one, and not the exclusive, application of the fourth category to a specific law. Laws which reduce the quantum of evidence necessary to convict violate the Ex Post Facto Clause for the same reasons that laws which reverse the burden of proof violate it.

Texas next argued that its amendment was simply a witness competency rule. In  Hopt v. Territory of Utah, 110 U.S. 574 (1884), the Court, in rejecting an ex post facto challenge to a felon-witness competency provision, held that rules which alter the class of persons who are competent to testify do not violate the Ex Post Facto Clause. In  Thompson v. Missouri, 171 U.S. 380 (1898), the Court, relying on Hopt, rejected an ex post facto challenge to the retroactive application of a law permitting the introduction of expert handwriting testimony. The Court rejected this argument, however, noting that both before and after the Texas amendment, the victim was competent to give testimony. The amendment simply changed the circumstances under which such testimony would alone be sufficient for a conviction. The Texas amendment, therefore, is not a witness competency rule, but a rule which alters the amount of evidence needed to convict an offender.

Other Opinions: Joined by Justices Rehnquist, O’Connor, and Kennedy, Justice Ginsburg dissented on two grounds. First, she argued that the Texas amendment was a witness competency rule because it essentially established that sexual victims under 18 were trustworthy to give testimony regarding their experiences with a defendant. It therefore did not change the quantum of sufficiency of evidence required to convict, as the majority held, but rather expanded the range of methods the State could use to establish sufficiency. "Under both the old and new versions of the statute, the applicable standard is proof beyond a reasonable doubt." Under Hopt, the dissent argued, such a law is not ex post facto. Second, the dissent argued that the fourth category of ex post facto laws found in Calder was overruled in Collins. The dissent further argued that rules "governing the function of the criminal trial process" are not subject to the Ex Post Facto Clause.

Comments: The majority stressed the intent of the framers from a textual and historical perspective, while the dissent emphasized Supreme Court precedent. It is difficult to reconcile the majority opinion with that precedent or the dissenters' opinion with the framers' intent.