Carmell v. Texas, 529 U.S. 513 (2000) (2024)

OCTOBER TERM, 1999SyllabusCARMELL v. TEXASCERTIORARI TO THE COURT OF APPEALS OF TEXAS, SECOND DISTRICTNo. 98-7540. Argued November 30, 1999-Decided May 1,2000In 1996, petitioner was convicted on 15 counts of committingsexual offenses against his stepdaughter from 1991 to 1995, whenshe was 12 to 16 years old. Before September 1, 1993, Tex. CodeCrim. Proc. Ann., Art. 38.07, specified that a victim's testimonyabout a sexual offense could not support a conviction unlesscorroborated by other evidence or the victim informed anotherperson of the offense within six months of its occurrence, butthat, if a victim was under 14 at the time of the offense, thevictim's testimony alone could support a conviction. A 1993amendment allowed the victim's testimony alone to support aconviction if the victim was under 18. The validity of four ofpetitioner's convictions depends on which version of the lawapplies to him. Before the Texas Court of Appeals, he argued thatthe four convictions could not stand under the pre-1993 version ofthe law, which was in effect at the time of his alleged conduct,because they were based solely on the testimony of the victim, whowas not under 14 at the time of the offenses and had not made atimely outcry. The court held that applying the 1993 amendmentretrospectively did not violate the Ex Post Facto Clause,and the State Court of Criminal Appeals denied review.Held: Petitioner's convictions on the counts at issue,insofar as they are not corroborated by other evidence, cannot besustained under the Ex Post Facto Clause. Pp. 521-553.(a) In Calder v. Bull, 3 Dall. 386, 390, JusticeChase stated that the proscription against ex post factolaws was derived from English common law well known to the Framers,and set out four categories of ex post facto criminal laws:"1st. Every law that makes an action done before the passing of thelaw, and which was innocent when done, criminal; andpunishes such action. 2d. Every law that aggravates acrime, or makes it greater than it was, whencommitted. 3d. Every law that changes the punishment, andinflicts a greater punishment, than the law annexed to thecrime, when committed. 4th. Every law that alters the legalrules of evidence, and receives less, or different,testimony, than the law required at the time of the commission ofthe offence, in order to convict the offender." The Courthas repeatedly endorsed this understanding, including the fourthcategory. Both Justice Chase and the common-law treatise on whichhe drew heavily cited

514Syllabusthe case of Sir John Fenwick as an example of the fourthcategory. England charged Fenwick with high treason in the late17th century, but, under an Act of Parliament, he could not beconvicted without the testimony of two witnesses. Parliament passeda bill of attainder making the two-witness rule inapplicable, andFenwick was convicted on the testimony of only one witness. Pp.521-530.(b) Article 38.07 plainly fits within Calder's fourthcategory. Requiring only the victim's testimony to convict, ratherthan that testimony plus corroborating evidence, is surely "lesstestimony required to convict" in any straightforward sense ofthose words. Indeed, the circumstances here parallel those ofFenwick's case. That Article 38.07 neither increases the punishmentfor, nor changes the elements of, the offense simply shows that theamendment does not fit within Calder's first or thirdcategories. Pp. 530-531.(c) The fourth category resonates harmoniously with one of theprincipal interests that the Ex Post Facto Clause wasdesigned to serve, fundamental justice. A law reducing the quantumof evidence required to convict is as grossly unfair asretrospectively eliminating an element of the offense, increasingpunishment for an existing offense, or lowering the burden ofproof. In each instance, the government refuses, after the fact, toplay by its own rules, altering them in a way that is advantageousonly to the State, to facilitate an easier conviction. There isplainly a fundamental fairness interest in having the governmentabide by the rules of law it establishes to govern thecircumstances under which it can deprive a person of his or herliberty or life. Indeed, Fenwick's case itself illustrates thisprinciple. Pp. 531-534.(d) None of the reasons that the United States as amicusadvances for abandoning the fourth category is persuasive. Itasserts that the fact that neither Blackstone nor ex postfacto clauses in Ratification-era state constitutions mentionthe fourth category shows that Justice Chase simply got it wrong.Accepting this assertion would require the Court to abandon thethird category as well, for it is also not mentioned in any ofthose sources. And it does not follow from the fact that Fenwickwas convicted by a bill of attainder that his case cannot also bean example of an ex post facto law. In fact, all of thespecific examples that Justice Chase listed in Calder werepassed as bills of attainder. Nor, as the United States and Texasargue, was the fourth category effectively cast out inCollins v. Youngblood, 497 U. S. 37, whichactually held that it was a mistake to stray beyond Calder'sfour categories, not that the fourth category was itself mistaken.Pp. 534-539.(e) Texas' additional argument that the fourth category islimited to laws that retrospectively alter the burden of proof isalso rejected.

515The Court's decision in Cummings v. Missouri, 4Wall. 277, nowhere suggests that a reversal of the burden of proofis all the fourth category encompasses; and laws that lower theburden of proof and laws that reduce the quantum of evidencenecessary to meet that burden are indistinguishable in allmeaningful ways relevant to concerns of the Ex Post FactoClause. Texas' assertion that Fenwick's case concerns only areduction in the burden of proof is based on a mistaken historicalpremise. And its argument that the present case is controlled byHopt v. Territory of Utah, 110 U. S. 574, andThompson v. Missouri, 171 U. S. 380, is alsounpersuasive. Unlike the witness competency rules at issue there,Article 38.07 is a sufficiency of the evidence rule. It does notmerely regulate the mode in which the facts constituting guilt maybe placed before the jury, but governs the sufficiency of thosefacts for meeting the burden of proof. Indeed, Hoptexpressly distinguished witness competency laws from lawsaltering the amount or degree of proof needed for conviction.Moreover, a sufficiency of the evidence rule resonates with theinterests to which the Ex Post Facto Clause is addressed, inparticular the elements of unfairness and injustice in subvertingthe presumption of innocence. Pp. 539-547.963 S. W. 2d 833, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in whichSCALIA, SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J.,filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNORand KENNEDY, JJ., joined, post, p. 553.Richard D. Bernstein, by appointment of the Court, 527 U.S. 1051, argued the cause for petitioner. With him on the briefswere Carter G. Phillips, Katherine L. Adams, andPaul A. Hemmersbaugh.John Cornyn, Attorney General of Texas, argued the causefor respondent. With him on the brief were Andy Taylor,First Assistant Attorney General, Linda S. Eads,Deputy Attorney General, Gregory S. Coleman,Solicitor General, and Philip A. Lionberger, AssistantSolicitor General.Beth S. Brinkmann argued the cause for the UnitedStates as amicus curiae urging affirmance. With her on thebrief were Solicitor General Waxman, Assistant Attorney

516General Robinson, Deputy Solicitor General Dreeben, and Vicki S.Marani. *JUSTICE STEVENS delivered the opinion of the Court. An amendmentto a Texas statute that went into effect on September 1, 1993,authorized conviction of certain sexual offenses on the victim'stestimony alone. The previous statute required the victim'stestimony plus other corroborating evidence to convict theoffender. The question presented is whether that amendment may beapplied in a trial for offenses committed before the amendment'seffective date without violating the constitutional prohibitionagainst state "ex post facto" laws.IIn 1996, a Texas grand jury returned a is-count indictmentcharging petitioner with various sexual offenses against hisstepdaughter. The alleged conduct took place over more than fouryears, from February 1991 to March 1995, when the victim was 12 to16 years old. The conduct ceased after the victim told her motherwhat had happened. Petitioner was convicted on alliS counts. Thetwo most serious counts charged him with aggravated sexual assault,and petitioner was sentenced to life imprisonment on those twocounts.*Robert P. Marcovitch and Barbara Bergman filed abrief for the National Association of Criminal Defense Lawyers asamicus curiae urging reversal.A brief of amici curiae urging affirmance was filed forthe State of Kansas et al. by Carla J.Stovall, Attorney General of Kansas, and Stephen R.McAllister, State Solicitor, joined by the Attorneys Generalfor their respective States as follows: Janet Napolitano ofArizona, M. Jane Brady of Delaware, Robert A.Butterworth of Florida, Jeffrey A. Modisett of Indiana,Richard P. Ieyoub of Louisiana, Jennifer M. Granholmof Michigan, Joe Mazurek of Montana, Don Stenberg ofNebraska, Frankie Sue Del Papa of Nevada, Betty D.Montgomery of Ohio, W A. Drew Edmondson of Oklahoma,Charles M. Condon of South Carolina, Jan Graham ofUtah, William H. Sorrell of Vermont, and Christine O.Gregoire of Washington.

517For each of the other 13 offenses (5 counts of sexual assaultand 8 counts of indecency with a child), petitioner receivedconcurrent sentences of 20 years.Until September 1, 1993, the following statute was in ef-fect in Texas:

"A conviction under Chapter 21, Section 22.011, or Section22.021, Penal Code, is supportable on the uncorroborated testimonyof the victim of the sexual offense if the victim informed anyperson, other than the defendant, of the alleged offense within sixmonths after the date on which the offense is alleged to haveoccurred. The requirement that the victim inform another person ofan alleged offense does not apply if the victim was younger than 14years of age at the time of the alleged offense." Tex. Code Crim.Proc. Ann., Art. 38.07 (Vernon 1983).1

We emphasize three features of this law that are critical topetitioner's case.The first is the so-called "outcry or corroboration"requirement. Under that provision, a victim's testimony can supporta conviction for the specified offenses only if (1) that testimonyis corroborated by other evidence, or (2) the victim informedanother person of the offense within six months of its occurrence(an "outcry"). The second feature is the "child victim" provision,which is an exception to the outcry or corroboration requirement.According to this provision, if the victim was under 14 years oldat the time of the alleged offense, the outcry or corroborationrequirement does not apply and the victim's testimony alone cansupport a conviction-even without any corroborating evidence oroutcry. The third feature is that Article 38.07 establishes asuffi-1 The chapter and sections to which this statute refers coverall the charges contained in the 15-count indictment againstpetitioner. Chapter 21 includes the offense of indecency with achild; § 22.011 covers sexual assault; § 22.021 criminalizesaggravated sexual assault.

518ciency of the evidence rule respecting the minimum quantum ofevidence necessary to sustain a conviction. If the statute'srequirements are not met (for example, by introducing only theuncorroborated testimony of a 15-year-old victim who did not make atimely outcry), a defendant cannot be convicted, and the court mustenter a judgment of acquittal. See Leday v. State,983 S. W. 2d 713, 725 (Tex. Crim. App. 1998); Scoggan v.State, 799 S. W. 2d 679, 683 (Tex. Crim. App. 1990).Conversely, if the requirements are satisfied, a conviction, in thewords of the statute, "is supportable," and the case may besubmitted to the jury and a conviction sustained. SeeVickery v. State, 566 S. W. 2d 624, 626-627 (Tex.Crim. App. 1978); see also Burnham v. State, 821 S.W. 2d 1, 3 (Tex. Ct. App. 1991).2Texas amended Article 38.07, effective September 1, 1993.The amendment extended the child victim exception to victimsunder 18 years old.3 For four of petitioner's counts,2 Texas courts treat Article 38.07 as a sufficiency of theevidence rule, rather than as a rule concerning the competency oradmissibility of evidence. Ordinarily, when evidence that shouldhave been excluded is erroneously admitted against a defendant, thetrial court's error is remedied on appeal by reversing theconviction and remanding for a new trial. See, e. g., Milesv. State, 918 S. W. 2d 511, 512 (Tex. Crim. App. 1996);Beltran v. State, 728 S. W. 2d 382, 389 (Tex. Crim.App. 1987). A trial court's failure to comply with the requirementsof Article 38.07, by contrast, results not in a remand for a newtrial, but in the reversal of conviction and remand for entry of anorder of acquittal. See, e. g., Scoggan, 799 S. W. 2d, at683. At oral argument, Texas agreed that the foregoing is anaccurate description of Texas law. See Tr. of Oral Arg. 28-29, 32,40-41.3 The new statute read in full:"A conviction under Chapter 21, Section 22.011, or Section22.021, Penal Code, is supportable on the uncorroborated testimonyof the victim of the sexual offense if the victim informed anyperson, other than the defendant, of the alleged offense within oneyear after the date on which the offense is alleged to haveoccurred. The requirement that the victim inform another person ofan alleged offense does not apply if the victim was younger than 18years of age at the time of the alleged offense." Tex. Code Crim.Proc. Ann., Art. 38.07, as amended by Act of May 29, 1993, 73dLeg., Reg.

519that amendment was critical. The "outcry or corroboration"requirement was not satisfied for those convictions; 4 they restedsolely on the victim's testimony. Accordingly, the verdicts onthose four counts stand or fall depending on whether the childvictim exception applies. Under the old law, the exception wouldnot apply, because the victim was more than 14 years old atthe time of the alleged offenses. Under the new law, the exceptionwould apply, because the victim was under 18 years old at thattime. In short, the validity of four of petitioner's convictionsdepends on whether the old or new law applies to his case, which,in turn, depends on whether the Ex Post Facto Clauseprohibits the application of the new version of Article 38.07 tohis case.As mentioned, only 4 of petitioner's 15 total convictions areimplicated by the amendment to Article 38.07; the other 11counts-including the 2 convictions for which petitioner receivedlife sentences-are uncontested. Six counts are uncontested becausethey were committed when the victim was under 14 years old,so his convictions stand even under the old law; the other fiveuncontested counts were committed after the new Texas law went intoeffect, so there could be no ex post facto claim as to thoseconvictions. SeeSess., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765, 3766, and Actof May 10, 1993, 73d Leg., Reg. Sess., ch. 200, § 1, 1993 Tex. Gen.Laws 387, 388.4 The victim did not make an outcry until March 1995, more thansix months after the alleged offenses. Although the 1993 amendmentto Article 38.07 extended the outcry period from six months to oneyear, see n. 3, supra, the victim's outcry did not comewithin that time period either. Accordingly, that change in theoutcry provision is immaterial to this case.The State argues that there is evidence corroborating thevictim's testimony, so it does not help petitioner even if the oldlaw applies. See Brief for Respondent 4, n. 2. Before the statecourt, however, petitioner argued that "there was nothing tocorroborate [the victim's] version of events," 963 S. W. 2d 833,836 (Tex. Ct. App. 1998), and that court accepted the contention ascorrect for the purposes of its decision. We do the same here.

520Weaver v. Graham, 450 U. S. 24, 31 (1981)("The critical question [for an ex post facto violation] iswhether the law changes the legal consequences of acts completedbefore its effective date"). What are at stake, then, are the fourconvictions on counts 7 through 10 for offenses committed betweenJune 1992 and July 1993 when the victim was 14 or 15 years old andthe new Texas law was not in effect.Petitioner appealed his four convictions to the Court of Appealsfor the Second District of Texas in Fort Worth. See 963 S. W. 2d833 (1998). Petitioner argued that under the pre-1993 version ofArticle 38.07, which was the law in effect at the time of hisalleged conduct, those convictions could not stand, because theywere based solely on the victim's testimony, and the victimwas not under 14 years old at the time of the offenses, nor had shemade a timely outcry.The Court of Appeals rejected petitioner's argument.Under the 1993 amendment to Article 38.07, the court observed,petitioner could be convicted on the victim's testimony alonebecause she was under 18 years old at the time of the offenses. Thecourt held that applying this amendment retrospectively topetitioner's case did not violate the Ex Post FactoClause:

"The statute as amended does not increase the punishment norchange the elements of the offense that the State must prove. Itmerely 'removes existing restrictions upon the competency ofcertain classes of persons as witnesses' and is, thus, a rule ofprocedure. Hopt v. Utah, 110 U. S. 574, 590 ...(1884)." Id., at 836.

The Texas Court of Criminal Appeals denied discretionary review.Because the question whether the retrospective application of astatute repealing a corroboration requirement has given rise toconflicting decisions,5 we granted peti-5 Compare Utah v. Schreuder, 726 P. 2d 1215 (Utah1986) (finding ex post facto violation); VirginIslands v. Civil, 591 F.2d255 (CA3 1979) (same), with New York v.Hudy, 73 N. Y. 2d 40, 535 N. E. 2d 250 (1988) (no expost

521tioner's pro se petition for certiorari, 527 U. S. 1002(1999), and appointed counsel, id., at 1051.IITo prohibit legislative Acts "contrary to the first principlesof the social compact and to every principle of sound legislation,"6 the Framers included provisions they considered to be "perhapsgreater securities to liberty and republicanism than any [theConstitution] contains." 7 The provisions declare:

"No State shall ... pass any Bill of Attainder, ex post factoLaw, or Law impairing the Obligation of Contracts .... " u. S.Const., Art. I, § 10.8

The proscription against ex post facto laws "necessarilyrequires some explanation; for, naked and without explanation, itis unintelligible, and means nothing." Calder v.Bull, 3 Dall. 386, 390 (1798) (Chase, J.). In Calderv. Bull, Justice Chase stated that the necessary explanationis derived from English common law well known to the Framers: "Theexpressions 'ex post facto laws,' are technical, theyhad been in use long before the Revolution, and had acquired anappropriate meaning, by Legislators, Lawyers, andAuthors." Id., at 391; see also id., at 389 ("Theprohibition ... very probably arose from the knowledge, that theParliament of Great Britain claimed and exercised a power topass such laws ... "); id., at 396 (Paterson, J.).Specifically, thefacto violation); Murphy v. Sowders,801 F.2d205 (CA6 1986) (same); Murphy v. Kentucky,652 S. W. 2d 69 (Ky. 1983) (same). See also Idaho v.Byers, 102 Idaho 159, 627 P. 2d 788 (1981) (judicial changein witness corroboration rule may not be applied retroactively);Bowyer v. United States, 422 A. 2d 973 (DC 1980)(same).6 The Federalist No. 44, p. 282 (C. Rossiter ed. 1961)(J. Madison). 7Id., No. 84, at 511 (A. Hamilton).8 Article I, § 9, cl. 3, has a similar prohibition applicable toCongress:"No Bill of Attainder or ex post facto Law shall be passed."

522phrase "ex post facto " referred only to certain types ofcriminal laws. Justice Chase cataloged those types as follows:

"I will state what laws I consider ex post factolaws, within the words and the intent of theprohibition. 1st. Every law that makes an action done before thepassing of the law, and which was innocent when done,criminal; and punishes such action. 2d. Every law thataggravates a crime, or makes it greater thanit was, when committed. 3d. Every law that changes thepunishment, and inflicts a greater punishment, than thelaw annexed to the crime, when committed. 4th. Every law thatalters the legal rules of evidence, and receivesless, or different, testimony, than the law required at the time ofthe commission of the offence, in order to convict theoffender." Id., at 390 (emphasis in original).9

It is the fourth category that is at issue in petitioner'scase.The common-law understanding explained by Justice Chase drewheavily upon the authoritative exposition of one of the greatscholars of the common law, Richard Wooddeson. See id., at391 (noting reliance on Wooddeson's treatise).l09 Elsewhere in his opinion, Justice Chase described his taxonomyof ex post facto laws as follows:"Sometimes [ex post facto laws] respected the crime, bydeclaring acts to be treason, which were not treason, whencommitted; at other times, they violated the rules of evidence (tosupply a deficiency of legal proof) by admitting one witness, whenthe existing law required two; by receiving evidence without oath;or the oath of the wife against the husband; or other testimony,which the courts of justice would not admit; at other times theyinflicted punishments, where the party was not, by law, liable toany punishment; and in other cases, they inflicted greaterpunishment, than the law annexed to the offence." 3 Dall., at 389(emphasis deleted).lOWooddeson was well known for his treatise on British commonlaw, A Systematical View of the Laws of England, which collectedvarious lectures he delivered as the Vinerian Professor and Fellowof Magdalen College at Oxford. Though not as well known today,Justice Chase noted

523Wooddeson's classification divided ex post facto lawsinto three general categories: those respecting the crimesthemselves; those respecting the legal rules of evidence; and thoseaffecting punishment (which he further subdivided into lawscreating a punishment and those making an existing punishment moresevere)Y See 2 R. Wooddeson, A Systematical View of the Laws ofEngland 625-640 (1792) (Lecture 41) (hereinafter Wooddeson). Thosethree categories (the last of which was further subdivided)correlate precisely to Calder's four categories. JusticeChase also used language in describing the categories thatcorresponds directly to Wooddeson's phrasing.12 Finally, infourthat Wooddeson was William Blackstone's successor, 3 Dall., at391 (Blackstone held the Vinerian chair at Oxford until 1766), andhis treatise was repeatedly cited in the years following theratification by lawyers appearing before this Court and by theCourt itself. See, e. g., Trustees of Dartmouth College v.Woodward, 4 Wheat. 518, 562-563 (1819) (argument of DanielWebster); id., at 668, 676 (Story, J.); Town ofPawlet v. Clark, 9 Cranch 292, 326, 329 (1815) (Story,J.); The Nereide, 9 Cranch 388, 449 (1815) (Story, J.);Cooper v. Telfair, 4 Dall. 14,16-17 (1800) (argumentsof Edward Tilghman, Jared Ingersoll, and Alexander Dallas);Hannum v. Spear, 2 Dall. 291 (Err. App. Pa. 1795);Glass v. Sloop Betsey, 3 Dall. 6, 8 (1794).11 Specifically, in the former category Wooddeson included thoselaws that make "some innovation, or creat[e] some forfeiture ordisability, not incurred in the ordinary course of law." 2 R.Wooddeson, A Systematical View of the Laws of England 638 (1792).In the latter category, he placed those laws that "imposed asentence more severe than could have been awarded by theinferior courts." Id., at 639. As examples of the formercategory Wooddeson cited the bills passed by Parliament thatbanished Lord Clarendon in 1669 and Bishop Atterbury in 1723. Thosepunishments were considered "innovation[s] ... not incurred in theordinary course of law" because banishment, at those times, wassimply not a form of penalty that could be imposed by the courts.Ibid. See 11 W. Holdsworth, A History of English Law 569(1938); Craies, The Compulsion of Subjects to Leave the Realm, 6 L.Q. Rev. 388, 396 (1890).12 See 2 Wooddeson 631 (referring to laws that "respec[t] thecrime, determining those things to be treason, which by no priorlaw or adjudication could be or had been so declared"); id.,at 633-634 (referring to laws "respecting ... the rules ofevidence [rectifying] a deficiency of

524footnotes in Justice Chase's opinion, he listed examples ofvarious Acts of Parliament illustrating each of the fourcategories. See 3 Dall., at 389, nn. *, t, :!:, 11.13 Each of theseexamples is exactly the same as the ones Wooddeson himself used inhis treatise. See 2 Wooddeson 629 (case of the Earl of Strafford);id., at 634 (case of Sir John Fenwick); id., at 638(banishments of Lord Clarendon and of Bishop Atterbury);id., at 639 (Coventry Act).Calder's four categories, which embraced Wooddeson'sformulation, were, in turn, soon embraced by contemporary scholars.Joseph Story, for example, in writing on the Ex Post FactoClause, stated:

"The general interpretation has been, and is, ... that theprohibition reaches every law, whereby an act is declared a crime,and made punishable as such, when it was not a crime, when done; orwhereby the act, if a crime, is aggravated in enormity, orpunishment; or whereby different, or less evidence, is required toconvict an offender, than was required, when the act wascommitted." 3 Commentaries on the Constitution of the United States§ 1339, p. 212 (1833).

James Kent concurred in this understanding of the Clause: "[T]hewords ex post facto laws were technical expressions, andmeant every law that made an act done before the passing of thelaw, and which was innocent when done, criminal; or whichaggravated a crime, and

legal proof" created when only one witness was available but "astatute then lately made requiring two witnesses" had been ineffect); id., at 638 (describing "acts of parliament, whichprincipally affect the punishment, making therein someinnovation, or creating some forfeiture or disability, not incurredin the ordinary course of law"); id., at 639 (referring toinstances where "the legislature ... imposed a sentence moresevere than could have been awarded by the inferior courts").Cf. n. 9, supra.13 The instances cited were the case of the Earl of Strafford,the case of Sir John Fenwick, the banishments of Lord Clarendon andof Bishop Atterbury, and the Coventry Act.

525

made it greater than it was when committed; or which changed thepunishment, and inflicted a greater punishment than the law annexedto the crime when committed; or which altered the legal rules ofevidence, and received less or different testimony than the lawrequired at the time of the commission of the offence, in order toconvict the offender." 1 Commentaries on American Law 408 (3d ed.1836) (Lecture 19).

This Court, moreover, has repeatedly endorsed thisunderstanding, including, in particular, the fourth category(sometimes quoting Chase's words verbatim, sometimes simplyparaphrasing). See Lynce v. Mathis, 519 U. S. 433, 441, n. 13(1997); Dobbert v. Florida, 432 U. S. 282, 293(1977); Malloy v. South Carolina, 237 U. S. 180, 183-184(1915); Mallett v. North Carolina, 181 U. S. 589, 593-594(1901); Thompson v. Missouri, 171 U. S. 380, 382, 387(1898); Hawker v. New York, 170 U. S. 189, 201 (1898)(Harlan, J., dissenting); Gibson v. Mississippi,162 U. S. 565,589-590 (1896); Duncan v. Missouri, 152 U. S. 377, 382(1894); Hopt v. Territory of Utah, 110 U. S. 574, 589(1884); Kring v. Missouri, 107 U. S. 221, 228 (1883),overruled on other grounds, Collins v. Youngblood,497 U. S. 37(1990); Gut v. State, 9 Wall. 35, 38 (1870); Exparte Garland, 4 Wall. 333, 390-391 (1867) (Miller, J.,dissenting); Cummings v. Missouri, 4 Wall. 277,325-326, 328 (1867). State courts, too, in the years followingCalder, adopted Justice Chase's four-category formulation.See Boston & Gunby v. Cummins, 16 Ga. 102,106 (1854); Martindale v. Moore, 3 Blackf. 275, 277(Ind. 1833); Davis v. Ballard, 24 Ky. 563, 578(1829); Strong v. State, 1 Blackf. 193,196 (Ind.1822); Dickinson v. Dickinson, 7 N. C. 327, 330(1819); see also Woart v. Winnick, 3 N. H. 473, 475(Super. Ct. 1826).1414 The reception given the four categories contrasts with thatgiven to Calder's actual holding-that the Ex PostFacto Clause applies only to criminal laws, not to civil laws.The early criticism levied against that holding, see, e.g., Satterlee v. Matthewson, 2 Pet.380,416,681-687 (App. I)

526IIIAs mentioned earlier, Justice Chase and Wooddeson both citedseveral examples of ex post facto laws, and, in particular,cited the case of Sir John Fenwick as an example of the fourthcategory. To better understand the type of law that falls withinthat category, then, we turn to Fenwick's case for preliminaryguidance.Those who remained loyal to James II after he was deposed byKing William III in the Revolution of 1688 thought theiropportunity for restoration had arrived in 1695, following thedeath of Queen Mary. 9 T. Macaulay, History of England 31 (1899)(hereinafter Macaulay). Sir John Fenwick, along with other Jacobiteplotters including George Porter and Cardell Goodman, beganconcocting their scheme in the spring of that year, and over thenext several months the original circle of conspirators expanded innumber. Id., at 32, 47-48, 109-110. Before the conspiratorscould carry out their machinations, however, three members of thegroup disclosed the plot to William. Id., at 122-125. One byone, the participants were arrested, tried, and convicted oftreason. Id., at 127-142. Fenwick, though, remained inhiding while the rest of the cabal was brought to justice. Duringthat time, the trials of his accomplices revealed that there wereonly two witnesses among them who could prove Fenwick's guilt,Porter and Goodman. Id., at 170171. As luck would have it,an act of Parliament proclaimed that two witnesses were necessaryto convict a person of high treason. See An Act for Regulateing ofTryals in(1829) (Johnson, J., concurring); Stoddart v.Smith, 5 Binn. 355, 370 (Pa. 1812) (Brackenridge, J.), wasabsent with respect to the four categories. Although JusticeChase's opinion may have somewhat dampened the appetite for furtherdebate in the courts, that consideration would not necessarily havean effect on scholarly discourse, nor does it explain why judgeswould be reluctant to express criticism of the four categories, yetharbor no compunction when it came to criticizing the actualholding of the Court.

527Cases of Treason and Misprision of Treason, 7 & 8 Will. III,ch. 3, § 2 (1695-1696), in 7 Statutes of the Realm 6 (reprint1963).15 Thus, Fenwick knew that if he could induce either Porteror Goodman to abscond, the case against him would vanish. 9Macaulay 171.Fenwick first tried his hand with Porter. Fenwick sent his agentto attempt a bribe, which Porter initially accepted in exchange forleaving for France. But then Porter simply pocketed the bribe,turned in Fenwick's agent (who was promptly tried, convicted, andpilloried), and proceeded to testify against Fenwick (along withGoodman) before a grand jury. Id., at 171-173. When thegrand jury returned an indictment for high treason, Fenwickattempted to flee the country himself, but was apprehended andbrought before the Lord Justices in London. Sensing an impendingconviction, Fenwick threw himself on the mercy of the court andoffered to disclose all he knew of the Jacobite plotting, aware allthe while that the judges would soon leave the city for theircircuits, and a delay would thus buy him a few weeks time.Id., at 173-174.Fenwick was granted time to write up his confession, but ratherthan betray true Jacobites, he concocted a confession calculated toaccuse those loyal to William, hoping to introduce embarrassmentand perhaps a measure of instability to the current regime.Id., at 175-178. William, however, at once perceivedFenwick's design and rejected the confession, along with anyexpectation of mercy. Id., at 178-15 That Act read, in relevant part:"And bee it further enacted That ... noe Person or Personswhatsoever shall bee indicted tryed or attainted of High Treason... but by and upon the Oaths and Testimony of Two lawfullWitnesses either both of them to the same Overtact or one of themto one and another of them to another Overtact of the same Treasonunlesse the Party indicted and arraigned or tryed shall willinglywithout violence in open Court confesse the same or shall standMute or refuse to plead or in cases of High Treason shallperemptorily challenge above the Number of Thirty five of the Jury.... "

528180, 194. Though his contrived ploy for leniency wasunsuccessful in that respect, it proved successful in another:during the delay, Fenwick's wife had succeeded in bribing Goodman,the other witness against him, to leave the country. Id., at194-195.16Without a second witness, Fenwick could not be convicted of hightreason under the statute mentioned earlier. For all his plotting,however, Fenwick was not to escape. After Goodman's absence wasdiscovered, the House of Commons met and introduced a bill ofattainder against Fenwick to correct the situation produced by thecombination of bribery and the two-witness law. Id., at198-199. A lengthy debate ensued, during which the Membersrepeatedly discussed whether the two-witness rule should applyPUltimately, the bill passed by a close vote of 189 to 156,id., at 210, notwithstanding the objections of Members who(foreshadowing Calder's fourth category) complained thatFenwick was being attainted "upon less Evidence" than16 This time, Fenwick's wife handled the bribe with a deftnesslacking in the first attempt. Not only was Goodman (popularlycalled "Scum Goodman," see 9 Macaulay 32) an easier target, butLady Fenwick's agent gave Goodman an offer he couldn't refuse:abscond and be rewarded, or have his throat cut on the spot.Id., at 195. Goodman's instinct for selfpreservationprevailed, and the agent never parted company with him until theyboth safely reached France. Ibid.17 See, e. g., The Proceedings Against Sir JohnFenwick Upon a Bill of Attainder for High Treason 40 (1702)(hereinafter Proceedings) (" 'Tis Extraordinary that you bring SirJohn Fenwick, here to Answer for Trea- son, when ... youhave but one Witness to that Treason ... Treason be not Treasonunless it be proved by two Witnesses ... "); id., at 103("It hath been objected, That there ought to be two Witnesses, bythe late Statute"); id., at 227 ("I do take it to be part ofthe Law of the Land, That no Man should be condemned for Treasonwithout two Witnesses"); id., at 256-257 ("[I]f we sit hereto Judge, we sit to Judge him according to the Law of England.... Will you set up a Judgment ... upon one Witness, when theLaw says you shall have two; and after all, say 'tis a reasonableProceeding?").

529would be required under the two-witness law,18 and despite therepeated importuning against the passing of an ex post factolaw.19 The bill then was taken up and passed by the18 See, e. g., id., at 270 ("I believe this Housecan't take away any Persons Life upon less Evidence than InferiourCourts could do"); id., at 288 ("Shall we that are theSupream Authority ... go upon less Evidence to satisfie ourselvesof Sir John Fenwick's Guilt, than other Courts?");id., at 317 ("I can't satisfie my self in my Conscience, andshould think some misfortune might follow me and my Posterity, if Ipassed Sentence upon Sir John Fenwick's Life, upon lessEvidence than the Law of England requires"); id., at342 ("But the Liberty of the People of England is very muchconcerned in the Revocation of that Act; and none of the Argumentsthat have been used can Convince me, That I ought to give Judgmentupon less Evidence than is required by that Act").19 See, e. g., id., at 145 ("I can't say, butthose Persons, who in the last Sessions of Parliament, wereImprisoned by an Act Ex Post Facto, and subsequent to theFact Complained of, yet when it was passed into a Law, they wereLegally Detained: but, I hope, I may take notice of their Case, assome kind of Reason against this, to the end that those Laws maynot grow familiar, that they may not easily be obtained; becausePrecedents generally grow, and as that Law Ex Post Facto,extended to Liberty, so this extends to Life ... "); id., at152-153 ("It would be too much at once to make a subsequentLaw to condemn a Man to Death .... I am afraid none are safe ifthat be admitted, That a subsequent Law may take away aMan's Life ... " (emphasis added)); id., at 197 ("Sir, Ithath been urged to you, of what ill Consequence it would be, andhow much Injustice to make a Law to Punish a Man, Ex post Facto... "); id., at 256 ("But how shall they Judge? By the Laws inbeing ... That you may Judge that to be Treason in this House,that was not so by the Law before. So that give meleave to say, therefore there is no such Power reserved to theParliament, to Declare any thing Treason that is not Treasonbefore" (emphasis added)); id., at 282-283 ("[F]or accordingto your Law, no Man shall be declared Guilty of Treason, unlessthere be two Witnesses against him .... But how can a Man satisfiehis own Conscience, to Condemn any Man by a Law that issubsequent to the Fact? For that is the Case ... " (emphasisadded)); id., at 305 ("I think I may confidently affirm,there is not so much as one Precedent where a Person ... was takenaway from his Tryal, ... and cut off extrajudicially by an Act madeon purpose, Ex post Facto"); id., at 331-332 ("Those Actsthat have been made since, are made certainly to provide, That inno Case whatsoever, a Man should be so much as accused without twoWitnesses

530House of Lords, and the King gave his assent. Id., at214225; see also An Act to Attaint Sir John Fenwick Baronet of HighTreason, 8 Will. III, ch. 4 (1696). On January 28, 1697, Sir JohnFenwick was beheaded. 9 Macaulay 226-227.IVArticle 38.07 is unquestionably a law "that alters the legalrules of evidence, and receives less, or different, testimony, thanthe law required at the time of the commission of the offence, inorder to convict the offender." Under the law in effect at the timethe acts were committed, the prosecution's case was legallyinsufficient and petitioner was entitled to a judgment ofacquittal, unless the State could produce both the victim'stestimony and corroborative evidence. The amended law,however, changed the quantum of evidence necessary to sustain aconviction; under the new law, petitioner could be (and was)convicted on the victim's testimony alone, without anycorroborating evidence. Under any commonsense understanding ofCalder's fourth category, Article 38.07 plainly fits.Requiring only the victim's testimony to convict, rather than thevictim's testimony plus other corroborating evidence is surely"less testimony required to convict" in any straightforward senseof those words.Indeed, the circumstances of petitioner's case parallel those ofFenwick's case 300 years earlier. Just as the relevant law inFenwick's case required more than one witness' testimony to supporta conviction (namely, the testimony of a second witness), Texas'old version of Article 38.07 required more than the victim'stestimony alone to sustain a conviction (namely, othercorroborating evidence).2o And just like Fen-of the Treason .... Then this is a Law; ex post facto,and that hath been always condemned ... ").20 Texas argues that the corroborative evidence required byArticle 38.07 "need not be more or different from the victim'stestimony; it may be entirely cumulative of the victim'stestimony." Brief for Respondent 19;

531wick's bill of attainder, which permitted the House of Commonsto convict him with less evidence than was otherwise required,Texas' retrospective application of the amendment to Article 38.07permitted petitioner to be convicted with less than the previouslyrequired quantum of evidence. It is true, of course, as the TexasCourt of Appeals observed, that "[t]he statute as amended does notincrease the punishment nor change the elements of the offense thatthe State must prove." 963 S. W. 2d, at 836. But that observationsimply demonstrates that the amendment does not fit withinCalder's first and third categories. Likewise, the dissent'sremark that "Article 38.07 does not establish an element of theoffense," post, at 559, only reveals that the law does notcome within Calder's first category. The fact that theamendment authorizes a conviction on less evidence than previouslyrequired, however, brings it squarely within the fourthcategory.VThe fourth category, so understood, resonates harmoniously withone of the principal interests that the Ex Post Facto Clausewas designed to serve, fundamental justice.21see also post, at 561, n. 6 (dissenting opinion). Thetrouble with that argument is that the same was true in Fenwick'scase. The relevant statute there required the "Testimony of Twolawfull Witnesses either both of them to the same Overtactor one of them to one and another of them to another Overtact ofthe same Treason." See n. 15, supra (emphasis added).21 The Clause is, of course, also aimed at other concerns,"namely, that legislative enactments give fair warning of theireffect and permit individuals to rely on their meaning untilexplicitly changed," Miller v. Florida, 482 U. S. 423, 430 (1987)(internal quotation marks omitted), and at reinforcing theseparation of powers, see Weaver v. Graham, 450 U. S. 24, 29, n. 10(1981). But those are not its only aims, and the absence of areliance interest is not an argument in favor of abandoning thecategory itself. If it were, the same conclusion would follow forCalder's third category (increases in punishment), as thereare few, if any, reliance interests in planning future criminalactivities based on the expectation of less severerepercussions.

532Justice Chase viewed all ex post facto laws as"manifestly unjust and oppressive." Calder, 3 Dall., at 391.Likewise, Blackstone condemned them as "cruel and unjust," 1Commentaries on the Laws of England 46 (1765), as did every stateconstitution with a similar clause, see n. 25, infra. AsJustice Washington explained in characterizing "[t]he injustice andtyranny" of ex post facto laws:

"Why did the authors of the constitution turn their attention tothis subject, which, at the first blush, would appear to bepeculiarly fit to be left to the discretion of those who have thepolice and good government of the State under their management andcontrol? The only answer to be given is, because laws of thischaracter are oppressive, unjust, and tyrannical; and, as such, arecondemned by the universal sentence of civilized man." Ogdenv. Saunders, 12 Wheat. 213, 266 (1827).

In short, the Ex Post Facto Clause was designed as "anadditional bulwark in favour of the personal security of thesubject," Calder, 3 Dall., at 390 (Chase, J.), to protectagainst "the favorite and most formidable instruments of tyranny,"The Federalist No. 84, p. 512 (C. Rossiter ed. 1961) (A.Hamilton), that were "often used to effect the most detestablepurposes," Calder, 3 Dall., at 396 (Paterson, J.).Calder's fourth category addresses this concernprecisely.A law reducing the quantum of evidence required to convict anoffender is as grossly unfair as, say, retrospectively eliminatingan element of the offense, increasing the punishment for anexisting offense, or lowering the burden of proof (seeinfra, at 540-544). In each of these instances, thegovernment subverts the presumption of innocence by reducing thenumber of elements it must prove to overcome that presumption; bythreatening such severe punishment so as to induce a plea to alesser offense or a lower sentence; or by making it easier to meetthe threshold for overcoming the presumption. Reducing the quantumof evidence necessary

533to meet the burden of proof is simply another way of achievingthe same end.22 All of these legislative changes, in a sense, aremirror images of one another. In each instance, the governmentrefuses, after the fact, to play by its own rules, altering them ina way that is advantageous only to the State, to facilitate aneasier conviction. There is plainly a fundamental fairnessinterest, even apart from any claim of reliance or notice, inhaving the government abide by the rules of law it establishes togovern the circumstances under which it can deprive a person of hisor her liberty or life.23Indeed, Fenwick's case is itself an illustration of thisprinciple. Fenwick could claim no credible reliance interest in thetwo-witness statute, as he could not possibly have known that onlytwo of his fellow conspirators would be able to testify as to hisguilt, nor that he would be successful in bribing one of them toleave the country. Nevertheless, Parliament had enacted thetwo-witness law, and there was22 Lowering the burden of persuasion, to be sure, is notprecisely the same thing as lowering (as a matter of law) theamount of evidence necessary to meet that burden. But it does notfollow, as the dissent appears to think, that only the formersubverts the presumption of innocence. Post, at 560-561(opinion of GINSBURG, J.).23 We do not mean to say that every rule that has an effect onwhether a defendant can be convicted implicates the Ex PostFacto Clause. Ordinary rules of evidence, for example, do notviolate the Clause. See infra, at 543-547. Rules of thatnature are ordinarily evenhanded, in the sense that they maybenefit either the State or the defendant in any given case. Morecrucially, such rules, by simply permitting evidence to be admittedat trial, do not at all subvert the presumption of innocence,because they do not concern whether the admissible evidence issufficient to overcome the presumption. Therefore, to the extentone may consider changes to such laws as "unfair" or "unjust," theydo not implicate the same kind of unfairness implicated bychanges in rules setting forth a sufficiency of the evidencestandard. Moreover, while the principle of unfairness helps explainand shape the Clause's scope, it is not a doctrine unto itself,invalidating laws under the Ex Post Facto Clause by its ownforce. Cf. W S. Kirkpatrick & Co. v.Environmental Tectonics Corp., Int'l, 493 U. S. 400, 409(1990).

534a profound unfairness in Parliament's retrospectively alteringthe very rules it had established, simply because those rulesprevented the conviction of the traitor-notwithstanding the factthat Fenwick could not truly claim to be "innocent." (At least onehistorian has concluded that his guilt was clearly established, see9 Macaulay 203-204, and the debate in the House of Commons bearsout that conclusion, see, e. g., Proceedings 219,230, 246, 265, 289.) Moreover, the pertinent rule altered inFenwick's case went directly to the general issue of guilt,lowering the minimum quantum of evidence required to obtain aconviction. The Framers, quite clearly, viewed such maneuvers asgrossly unfair, and adopted the Ex Post Facto Clauseaccordingly.24VIThe United States as amicus asks us to revisit theaccuracy of the fourth category as an original matter. None of itsreasons for abandoning the category is persuasive.24 Fenwick's case also illustrates how such ex post factolaws can operate similarly to retrospective increases in punishmentby adding to the coercive pressure to accept a plea bargain. WhenFenwick was first brought before the Lord Justices, he was given anopportunity to make a confession to the King. Though he squanderedthe opportunity by authoring a plain contrivance, Fenwick couldhave reasonably assumed that a sincere confession would have beenrewarded with leniency-the functional equivalent of a plea bargain.See 9 Macaulay 125. When the bill of attainder was taken up by theHouse of Commons, there is evidence that this was done to pressureFenwick into making the honest confession he had failed to makebefore. See, e. g., Proceedings 197 (" 'Tis a Matterof Blood, 'tis true, but I do not aim at this Gentleman's Life init ... all I Propose by it, is to get his Confession"); id.,at 235 ("[W]e do not aim at Sir John Fenwick's Blood, (Godforbid we should) but at his Confession"); id., at 255("Why, give me leave to say to you, 'tis a new way not known inEngland, that you will Hang a Man unless he will Confess orgive Evidence ... "). And before the House of Lords, Fenwick wasexplicitly threatened that unless he confessed, they would proceedto consider the bill against him. 9 Macaulay 218.

535First, pointing to Blackstone's Commentaries and a handful ofstate constitutions cited by Justice Chase in Calder, see 3Dall., at 391-392, the United States asserts that Justice Chasesimply got it wrong with his four categories. Blackstone wrote:"There is still a more unreasonable method than this, which iscalled making of laws ex post facto; when after anaction is committed, the legislator then for the first timedeclares it to have been a crime, and inflicts a punishment uponthe person who has committed it .... " 1 Commentaries on the Lawsof England, at 46 (emphasis in original). The ex post factoclauses in Ratification-era state constitutions to which JusticeChase cited are of a piece.25 The United States directs ourattention to the fact that none of these definitions mentionsJustice Chase's fourth category.All of these sources, though, are perfectly consistent withJustice Chase's first category of ex post facto laws. Noneof them is incompatible with his four-category formulation, unlesswe accept the premise that Blackstone and the state constitutionspurported to express the exclusive definition of an expost facto law. Yet none appears to do so on its face. And ifthose definitions were read as exclusive, the United25 Massachusetts' clause read as follows: "Laws made to punishfor actions done before the existence of such laws, and which havenot been declared crimes by preceding laws, are unjust, oppressive,and inconsistent with the fundamental principles of a freegovernment." Constitution of Massachusetts, Pt. I, Art. 24 (1780),in 5 W. Swindler, Sources and Documents of United StatesConstitutions 95 (1975) (hereinafter Swindler). The Constitutionsof Maryland and North Carolina used identical words:"That retrospective laws, punishing facts committed before theexistence of such laws, and by them only declared criminal, areoppressive, unjust, and incompatible with liberty; wherefore noex post facto law ought to be made." Maryland Constitution,A Declaration of Rights, Art. 15 (1776), in 4 Swindler 373; NorthCarolina Constitution, A Declaration of Rights, Art. 24 (1776), in7 Swindler 403. And Delaware's Declaration of Rights andFundamental Rules, Art. 11 (1776), in 2 Swindler 198, stated, "Thatretrospective Laws, punishing Offenses committed before theExistence of such Laws, are oppressive and unjust and ought not tobe made."

536States' argument would run up against a more troubling obstacle,namely, that neither Blackstone nor the state constitutions mentionCalder's third category either (increases in punishment).The United States, in effect, asks us to abandon two ofCalder's categories based on the unsupported suppositionthat the Blackstonian and state constitutional definitions wereexclusive, and upon the implicit premise that neither Wooddeson,Chase, Story, Kent, nor subsequent courts (state and federal)realized that was so. We think that simply stating the nature ofthe request demonstrates why it must be rejected.26Next, the United States contends Justice Chase was mistaken tocite the case of Sir John Fenwick as an example of an ex postfacto law, because it was actually a bill of attainder. Fenwickwas indeed convicted by a bill of attainder, but it does not followthat his case cannot also be an example of an ex post factolaw. Clearly, Wooddeson thought it was, see 2 Wooddeson 641, as didthe House of Commons, see n. 19, supra, and we are aware ofno rule stating that a single historical event can explain one, butnot two, constitutional Clauses (actually, three Clauses, see Art.III, § 3 (Treason Clause)). We think the United States' observationsimply underscores the kinship between bills of attainder and expost facto laws, see Nixon v. Administrator ofGeneral Services, 433 U. S. 425, 468, n. 30(1977); United States v. Lovett, 328 U. S. 303, 323 (1946)(Frankfurter, J., concurring); see also Z. Chafee, Three HumanRights in the Constitution of 1787, pp. 92-93 (1956) (herein-26 Nor does it help much to cite Justice Iredell's statementthat ex post facto laws include those that "inflict apunishment for any act, which was innocent at the time it wascommitted; [or] increase the degree of punishment previouslydenounced for any specific offence," Calder v. Bull,3 Dall. 386, 400 (1798). The argument still requires us to believethat Justice Iredell-and only Justice Iredell-got it right, andthat all other authorities (now including Blackstone and the stateconstitutions) somehow missed the point.

537after Chafee), which may explain why the Framers twice placedtheir respective prohibitions adjacent to one another. And if theUnited States means to argue that category four should be abandonedbecause its illustrative example was a bill of attainder, thiswould prove entirely too much, because all of the specificexamples listed by Justice Chase were passed as bills ofattainder.27Finally, both Texas and the United States argue that we havealready effectively cast out the fourth category in Collinsv. Youngblood, 497 U. S. 37 (1990).Collins held no such thing. That case began its discussionof the Ex Post Facto Clause by quoting verbatim JusticeChase's "now familiar opinion in Calder" and hisfour-category definition. Id., at 41-42. After noting that"[e]arly opinions of the Court portrayed this as an exclusivedefinition of ex post facto laws," id., at 42, theCourt then quoted from our opinion in Beazell v.Ohio, 269 U.S. 167 (1925):

"'It is settled, by decisions of this Court so well known thattheir citation may be dispensed with, that any statute whichpunishes as a crime an act previously committed, which was innocentwhen done; which makes more burdensome the punishment for a crime,after its commission, or which deprives one charged with crime ofany defense available according to law at the time when the act wascommitted, is prohibited as ex post

27 See An Act for the Attainder of Thomas Earle of Strafford ofHigh Treason, 16 Car. I, ch. 38 (1640), in 5 Statutes of the Realm177 (reprint 1963); An Act for Banishing and Disenabling the Earlof Clarendon, 19 & 20 Car. II, ch. 2 (1667-1668), in 5 Statutesof the Realm, at 628; An Act to Inflict Pains and Penalties onFrancis (Atterbury) Lord Bishop of Rochester, 9 Geo. I, ch. 17(1722); An Act to Prevent Malicious Maiming and Wounding (CoventryAct), 22 & 23 Car. II, ch. 1 (1670). While the bills againstthe Earl of Clarendon and Bishop Atterbury appear to be bills ofpains and penalties, see Chafee 117, 136, as does the Coventry Act,see 2 Wooddeson 638-639, those are simply a subspecies of bills ofattainder, the only difference being that the punishment wassomething less than death. See Drehman v. Stifle, 8Wall. 595, 601 (1870).

538facto.'" Collins, 497 U. S., at 42 (quoting Beazell,269 U. S., at 169-170).Collins then observed in a footnote: "The Beazelldefinition omits the reference by Justice Chase in Calder v.Bull, to alterations in the 'legal rules of evidence.' Ascases subsequent to Calder make clear, this language was notintended to prohibit the application of new evidentiary rules intrials for crimes committed before the changes." 497 U. S., at 43,n.3 (citations omitted). Collins then commented that "[t]heBeazell formulation is faithful to our best knowledge of theoriginal understanding of the Ex Post Facto Clause."Id., at 43.It seems most accurate to say that Collins is rathercryptic. While calling Calder's four categories the"exclusive definition" of ex post facto laws, it also callsBeazell's definition a "faithful" rendition of the "originalunderstanding" of the Clause, even though that quotation omittedcategory four. And while Collins quotes a portion ofBeazell omitting the fourth category, the immediatelypreceding paragraph in Beazell explains that the law atissue in that case did not change "[t]he quantum and kind of proofrequired to establish guilt," 269 U. S., at 170, a statementdistinguishing, rather than overruling, Calder's fourthcategory.If Collins had intended to resurrect a long forgottenoriginal understanding of the Ex Post Facto Clause shorn ofthe fourth category, we think it strange that it would have done soin a footnote. Stranger still would be its reliance on a singlecase from 1925, which did not even implicate, let alone purport tooverrule, the fourth category, and which did not even mentionFenwick's case. But this Court does not discard longstandingprecedent in this manner. Further still, Collins itselfexpressly overruled two of our prior cases; if the Court that daywere intent on overruling part of Calder as well, it surelywould have said so directly, rather than act in such an ambiguousmanner.

539The better understanding of Co II ins' discussion of theEx Post Facto Clause is that it eliminated a doctrinal hitchthat had developed in our cases, which purported to define thescope of the Clause along an axis distinguishing between lawsinvolving "substantial protections" and those that are merely"procedural." Both Kring v. Missouri, 107 U. S. 221(1883), and Thompson v. Utah, 170 U. S. 343 (1898)-thetwo cases Collins overruled-relied on just that distinction.In overruling them, the Court correctly pointed out, "theprohibition which may not be evaded is the one defined by theCalder categories." 497 U. S., at 46. Accordingly,Collins held that it was a mistake to stray beyondCalder's four categories, not that the fourth category wasitself mistaken.28VIITexas next argues that even if the fourth category exists, it islimited to laws that retrospectively alter the burden of proof(which Article 38.07 does not do). See also post, at 572(dissenting opinion). It comes to this conclusion on the basis oftwo pieces of evidence. The first is our decision inCummings v. Missouri, 4 Wall. 277 (1867). The secondconcerns Texas' historical understanding of Fenwick's case.28 The dissent would have us dismiss our numerous and repeatedinvocations of the fourth category, see supra, at 525,because they were merely "mechanical ... recitation[s]" in casesthat did not depend on the fourth category. Post, at 568.Instead, the dissent would glean original meaning fromBeazell v. Ohio, 269 U. S. 167 (1925), andCollins v. Youngblood, 497 U. S. 37 (1990).Post, at 567-568. First of all, the dissent is factuallymistaken; Cummings v. Missouri, 4 Wall. 277 (1867),relied on the fourth category in invalidating the laws at issuethere. See infra this page and 540-541. And Hopt v.Territory of Utah, 110 U. S. 574 (1884)(discussed infra, at 542-547), specificallydistinguished category four. See post, at 570-571("Hopt ... retain[ed] Calder's fourth category").Second, as mentioned above, neither Beazell norCollins relied on the fourth category, so it is not apparentwhy the dissent would place so much emphasis on those two casesthat did not depend on category four.

540Cummings v. Missouri addressed an ex postfacto challenge to certain amendments to the Missouri StateConstitution made in 1865. When read together, those amendmentslisted a series of acts deemed criminal (all dealing with thegiving of aid or comfort to anyone engaged in armed hostilityagainst the United States), and then declared that unless a personengaged in certain professions (e. g., lawyers andclergymen) swore an oath of loyalty, he "shall, on conviction [forfailing to swear the oath], be punished" by a fine, imprisonment,or both. Id., at 279-281. We held that these provisionsviolated the Ex Post Facto Clause.Writing for the Court, Justice Field first observed that "[b]yan ex post facto law is meant one which imposes a punishmentfor an act which was not punishable at the time it was committed;or imposes additional punishment to that then prescribed; orchanges the rules of evidence by which less or different testimonyis sufficient to convict than was then required." Id., at325-326. The Court then held the amendments violated the Ex PostFacto Clause in all these respects: some of the offenses deemedcriminal by the amendments were not criminal acts before then,id., at 327-328; other acts were previously criminal, butnow they carried a greater criminal sanction, id., at 328;and, most importantly for present purposes, the amendmentspermitted conviction on less testimony than was previouslysufficient, because they "subvert the presumptions of innocence,and alter the rules of evidence, which heretofore, under theuniversally recognized principles of the common law, have beensupposed to be fundamental and unchangeable," ibid. TheCourt continued: "They assume that the parties are guilty; theycall upon the parties to establish their innocence; and theydeclare that such innocence can be shown only in one way-by aninquisition, in the form of an expurgatory oath, into theconsciences of the parties." Ibid.It is correct that Cummings held Missouri'sconstitutional amendments invalid under the fourth categorybecause

541they reversed the burden of proof. But Cummings nowheresuggests that a reversal of the burden of proof is all the fourthcategory encompasses. And we think there is no good reason to drawa line between laws that lower the burden of proof and laws thatreduce the quantum of evidence necessary to meet that burden; thetwo types of laws are indistinguishable in all meaningful waysrelevant to concerns of the Ex Post Facto Clause. Seesupra, at 530534; see also Cummings, 4 Wall., at 325("The legal result must be the same, for what cannot be donedirectly cannot be done indirectly. The Constitution deals withsubstance, not shadows").As for Texas' second piece of evidence, it asserts that the lawin Fenwick's case, requiring two witnesses to convict a person forhigh treason, traces its origins to the ancient Roman law conceptknown as the "rule of number," under which "the probative value oftestimony would be increased if others testifying to the same factsswore an oath." Brief for Respondent 20. The "less testimony" towhich Fenwick's case refers, the argument runs, concerns loweringthe probative value required to convict, i. e., a reductionin the burden of proof.Even if that historical argument were correct, the same responseto Texas' Cummings-based argument is applicable. But wethink the historical premise is mistaken. If the testimony of onewitness rather than two truly reflected a less credible showing,and if the House of Commons truly thought it labored under a lesserburden of proof, then one would expect some sort of reference tothat in Fenwick's case. Yet the few direct references to the burdenof proof that were made during the debates are to the contrary;they indicate something roughly the equivalent of abeyond-a-reasonabledoubt standard.29 And at least one Memberexpressly de-29 See, e. g., Proceedings 75 ("If upon what Ihear, I am of Opinion, he is notoriously Guilty, I shall freelypass the Bill. If I do so much as doubt that he is Guilty,according to the old Rule, Quod dubitas ne feceris

542dared that the number of witnesses testifying bore norelationship to the overall credibility of the Crown's case.30 Italso appears that "[a]fter the middle of the 1600s there never wasany doubt that the common law of England in jury trials rejectedentirely" the Roman law concept of the rule of number. Wigmore,Required Numbers of Witnesses; A Brief History of the NumericalSystem in England, 15 Harv. L. Rev. 83, 93 (1901). Though thetreason statute at issue in Fenwick's case, and related antecedentacts, have a superficial resemblance to the rule of number, thoseacts in fact reflected a concern with prior monarchical abusesrelating to the specific crime of treason, rather than anyvestigial belief that the number of witnesses is a proxy forprobative value. Id., at 100-101; see also 7 J. Wigmore,Evidence § 2037, pp. 353-354 (J. Chadbourn rev. 1978).VIIITexas argues (following the holding of the Texas Court ofAppeals) that the present case is controlled by Hopt v.Territory of Utah, 110 U. S. 574 (1884), andThompson v. Missouri, 171 U. S. 380 (1898). InHopt, the defendant was convicted of murder. At trial, theprosecution introduced the testimony of a convicted felon thattended to inculpate the defendant. Hopt objected to the competencyof the witness on the basis of a law in place at the time of thealleged murder, which stated: " '[T]he rules for determining thecompetency of witnesses in civil actions are applicable also tocriminal actions .... '" The relevant civil rules, in turn,specified that "'all persons, without exception, ... may bewitnesses in any action or proceeding,'" but "'persons against whomjudgment has been rendered upon a conviction[where you doubt, do nothing], I shall not be for it ... "). Seealso Coffin30 "[O]ne single Witness, if credited by Twelve Jury-men, issufficient; and an Hundred Witnesses, if not so credited, is notsufficient to Convict a Person of a Capital Crime." Proceedings210; see also id., at 223-226.

543for felony ... shall not be witnesses.'" 110 U. S., at 587-588.After the date of the alleged offense, but prior to defendant'strial, the last provision (excluding convicted felons from beingwitnesses) was repealed.The defendant argued that the retrospective application of thefelon witness-competency provision violated the Ex PostFacto Clause. Because of the emphasis the parties (and thedissent) have placed on Hopt, it is worth quoting at lengththis Court's explanation for why it rejected the defendant'sargument:

"Statutes which simply enlarge the class of persons who may becompetent to testify in criminal cases are not ex post factoin their application to prosecutions for crimes committed prior totheir passage; for they do not attach criminality to any actpreviously done, and which was innocent when done; nor aggravateany crime theretofore committed; nor provide a greater punishmenttherefor than was prescribed at the time of its commission; nordo they alter the degree, or lessen the amount or measure, of theproofwhich was made necessary to conviction when the crime wascommitted.

"The crime for which the present defendant was indicted, thepunishment prescribed therefor, and the quantity or the degreeof proof necessary to establish his guilt, all remainedunaffected by the subsequent statute. Any statutory alteration ofthe legal rules of evidence which would authorize conviction uponless proof, in amount or degree, than was required when the offencewas committed, might, in respect of that offence, be obnoxious tothe constitutional inhibition upon ex post facto laws. Butalterations which do not increase the punishment, nor change theingredients of the offence or the ultimate facts necessary toestablish guilt, but-leaving untouched the nature of the crime andthe amount or degree of proof essential to conviction-only removeexisting restrictions upon the compe-

544tency of certain classes of persons as witnesses, relate tomodes of procedure only, in which no one can be said to have avested right, and which the State, upon grounds of public policy,may regulate at pleasure. Such regulations of the mode in which thefacts constituting guilt may be placed before the jury, can be madeapplicable to prosecutions or trials thereafter had, withoutreference to the date of the commission of the offence charged."Id., at 589-590 (emphases added).Thompson v. Missouri, also relied upon by Texas,involved a similar ex post facto challenge to theretrospective application of a law permitting the introduction ofexpert handwriting testimony as competent evidence, where the rulein place at the time of the offense did not permit such evidence tobe introduced. Mainly on the authority of Hopt, the Courtrejected Thompson's ex post facto challenge as well.Texas' reliance on Hopt is misplaced. Article 38.07 issimply not a witness competency rule.31 It does not "simply enlargethe class of persons who may be competent to testify," and it doesnot "only remove existing restrictions upon the competency ofcertain classes of persons as witnesses." 110 U. S., at 589-590.Both before and after the amendment, the victim's testimony wascompetent evidence. Texas Rule of Criminal Evidence 601(a) alreadyprescribes that "[e]very person is competent to be a witness exceptas otherwise provided in these rules," and Rule 601(a)(2) alreadycontains its own provision respecting child wit-31 We recognize that the Court of Appeals stated Article 38.07"merely 'removes existing restrictions upon the competency ofcertain classes of persons as witnesses,'" 963 S. W. 2d, at 836(quoting Hopt, 110 U. S., at 590); see supra, at 520.Whether a state law is properly characterized as falling under theEx Post Facto Clause, however, is a federal question wedetermine for ourselves. Cf. Lindsey v. Washington,301 U. S. 397,400 (1937).

545nesses.32 As explained earlier, see supra, at 517-518,531533, Article 38.07 is a sufficiency of the evidence rule. Assuch, it does not merely "regulat[e] ... the mode in which thefacts constituting guilt may be placed before the jury," (Rule601(a) already does that), but governs the sufficiency of thosefacts for meeting the burden of proof. Indeed, Hoptexpressly distinguished witness competency laws from thoselaws that "alter the degree, or lessen the amount or measure, ofthe proof which was made necessary to conviction when the crime wascommitted." 110 U. S., at 589; see also id., at 590 (felonwitness law "leav[es] untouched ... the amount or degree of proofessential to conviction").It is profitable, in this respect, to compare the statutes inHopt and Thompson with the text of Article 38.07. Thelaw in Hopt proscribed a "'rul[e] for determining thecompetency of witnesses'" that stated "'persons ... convict[ed ofa] felony ... shall not be witnesses.'" 110 U. S., at 587-588. Thestatute in Thompson, similarly, specified that "'comparisonof a disputed writing ... shall be permitted to be made bywitnesses, and such writings ... may be submitted to the court andjury as evidence.'" 171 U. S., at 381. Article 38.07, however,speaks in terms of whether "[a] convic-32 That subsection contains an exception for "[c]hildren orother persons who, after being examined by the court, appear not topossess sufficient intellect to relate transactions with respect towhich they are interrogated."It is also worth observing that before 1986, Rule 601(a) wascodified as Tex. Code Crim. Proc. Ann., Art. 38.06 (Vernon1979)-the section immediately preceding the law at issue in thiscase. (The provision then read: "All persons are competent totestify in criminal cases," and contained a similar exception forchild witnesses.) We think it fair to infer that Texas was wellaware of the differences in the language used in these adjacentprovisions, and understood that the laws served two differentfunctions. The dissent views Article 38.07 as an exception to thegeneral rule of former Article 38.06. It finds it logical that theexception would be placed next to the general rule, post, at564, n. 8, but does not suggest a reason why it would be logicalfor the supposed exception to be phrased in language so utterlydifferent from the general rule.

546tion ... is supportable on" certain evidence. It is Rule 601(a),not Article 38.07, that addresses who is "competent to testify." Wethink the differences in these laws are plain.33Moreover, a sufficiency of the evidence rule resonates with theinterests to which the Ex Post Facto Clause is addressed ina way that a witness competency rule does not. In particular, theelements of unfairness and injustice in subverting the presumptionof innocence are directly implicated by rules lowering the quantumof evidence required to convict. Such rules will always runin the prosecution's favor, because they always make it easier toconvict the accused. This is so even if the accused is not in factguilty, because the coercive pressure of a more easily obtainedconviction may induce a defendant to plead to a lesser crime ratherthan run the risk of conviction on a greater crime. Witnesscompetency rules, to the contrary, do not necessarily run in theState's favor. A felon witness competency rule, for example, mighthelp a defendant if a felon is able to relate credible exculpatoryevidence.Nor do such rules necessarily affect, let alone subvert, thepresumption of innocence. The issue of the admissibility ofevidence is simply different from the question whether the properlyadmitted evidence is sufficient to convict the defendant. Evidenceadmissibility rules do not go to the general issue of guilt, nor towhether a conviction, as a matter of law, may be sustained.Prosecutors may satisfy all the requirements of any number ofwitness competency33 The dissent seems unwilling to concede this distinction.Though it admits that under Article 38.07 the uncorroborated victimis "not literally forbidden from testifying," post, at 563,it also insists that testimony is "inadmissible," post, at571, and that "the jury will not be permitted to consider it,"post, at 555, n. 3. See also post, at 557, 565(referring to Article 38.07 as a rule about witness "credibility");post, at 556, 570, 575 (referring to Texas' law as a rule of"admissibility"); post, at 553, 557,563, 564, and n. 8, 575(referring to the law as one about "competency"). We think it isclear from the text of Article 38.07 and Rule 601, however, thatthe victim's testimony alone is not inadmissible; it is justinsufficient.

547rules, but this says absolutely nothing about whether they haveintroduced a quantum of evidence sufficient to convict theoffender. Sufficiency of the evidence rules (by definition) do justthat-they inform us whether the evidence introduced is sufficientto convict as a matter of law (which is not to say the jurymust convict, but only that, as a matter of law, the casemay be submitted to the jury and the jury may convict). In thewords of Article 38.07, "[a] conviction ... is supportable" whenits requirements are met.IXThe dissent contends that Article 38.07 is not a sufficiency ofthe evidence rule. It begins its argument by describing at lengthhow the corroboration requirement "is premised on a legislativejudgment that accusations made by sexual assault victims above acertain age are not independently trustworthy." Post, at556; see also post, at 557-559. But it does not follow fromthat premise that Article 38.07 cannot be a sufficiency of theevidence rule. Surely the legislature can address trustworthinessissues through witness competency rules and sufficiency of theevidence rules alike. Indeed, the statutory history to which thedissent points cuts against its own argument. Article 38.07'sstatutory antecedent, the dissent says, was a "replac[ement]" forthe old common-law rule that seduced females were" 'incompetent'"as witnesses. Post, at 557, 558. In 1891, Texas substituteda law stating that" 'the female alleged to have been seducedshall be permitted to testify; but no convictionshall be had upon the testimony of the said female, unless thesame is corroborated .... '" Post, at 558 (emphasis added).That statute was recodified as Article 38.07 in 1965, was repealedin 1973, and then replaced in 1975 by another version of Article38.07. As reenacted, the law's language changed from "no convictionshall be had" to its current language that "[a] conviction ... issupportable." We think this legislative history, to the extent itis relevant for interpreting the current

548law, demonstrates that Texas perceived the issue of witnesstrustworthiness as both an admissibility issue and asa sufficiency question; that it long ago abandoned its rule thatvictims of these types of crimes are incompetent as witnesses; andthat Article 38.07 codifies Texas' sufficiency of the evidencesolution to the trustworthiness issue.Next, the dissent argues that under Texas' law "the prosecutionneed not introduce the victim's testimony at all, much less anycorroboration of that testimony." Post, at 559. Instead,"[u]nder both the old and new versions of the statute, a convictioncould be sustained on the testimony of a single third-partywitness, on purely circumstantial evidence, or in any number ofother ways." Ibid. Because other avenues ofprosecution-besides the victim's testimony (with or withoutcorroboration or outcry)-remain available to the State, Article38.07 "did not change the quantity of proof necessary to convictin every case." Post, at 560 (emphasis added in part anddeleted in part); see also post, at 561 ("Article 38.07 hasnever dictated what it takes in all cases ... for evidenceto be sufficient to convict" (emphasis added)). Accordingly, thedissent urges, more evidence (in the form of corroboration) is notreally required under Article 38.07. See post, at560-561, 574. It is unclear whether the dissent's argument is thatlaws cannot be sufficiency of the evidence rules unless they applyto every conviction for a particular crime, or whether thedissent means that sufficiency rules not applicable in everyprosecution for a particular crime do not fall withinCalder's fourth category, which refers to less testimony"required ... in order to convict the offender." 3 Dall., at390 (emphasis added in part and deleted in part). Either way, theargument fails.Fenwick's case once again provides the guide. The dissent agreesthat "[t]he treason statute in effect at the time of John Fenwick'sconspiracy, like the Treason Clause of our Constitution, embodied... a quantitative sufficiency [of the evidence] rule."Post, at 573. But, it argues, Fen-

549wick's law and the Treason Clause are different from Article38.07; with the first two laws, "two witnesses [were]necessary to support a conviction," ibid. (emphasisadded), whereas with Article 38.07, the victim's testimony pluscorroboration is not "necessary to convict in everycase," post, at 560 (emphasis added). But a closer look atFenwick's law and at the Treason Clause shows that this supposeddistinction is simply incorrect. Fenwick's law stated that noperson could be convicted of high treason "but by and upon theOaths and Testimony of Two lawfull Witnesses ... unlesse theParty indicted and arraigned or tryed shall willingly withoutviolence in open Court confesse the same or shall stand Mute orrefuse to plead ... " See n. 15, supra (emphasis added).And the Treason Clause, of course, states that "No Person shall beconvicted of Treason unless on the Testimony of two Witnesses tothe same overt Act, or on Confession in open Court." U. S.Const., Art. III, § 3 (emphasis added). Plainly, in neitherinstance were two witnesses "necessary to support aconviction," as the dissent claims. Accordingly, its assertion thatArticle 38.07 "is nothing like the two-witness rule on whichFenwick vainly relied" appears erroneous, as does its accusationthat our reliance on Fenwick's case "simply will not wash."Post, at 573.34The dissent's final argument relies upon Hopt and runssomething like this. The "effect" of Article 38.07, it claims, isthe same, in certain cases, as a witness credibility rule. Seepost, at 559, 563-566, 575. However differentlyHopt-34 Perhaps one can draw a distinction between convictions basedon confessions in open court and convictions based on third-partyevidence and the like (though how such a distinction would comportwith the language of the fourth category is not apparent). Forexample, an accused's confession might be thought to be outside ofthe State's control. But see n. 24, supra. It is not clearat all, though, that the availability of evidence other than thevictim's testimony is any more within the State's control than isthe defendant's confession.

550type laws and Article 38.07 may seem to operate on their face,in practical application (at least in certain instances) theirconsequences are no different, and, accordingly, they ought to betreated alike. For example, if there were a rule declaring a victimto be incompetent to testify unless she was under a certain age atthe time of the offense, or had made an outcry within a specifiedperiod of time, or had other corroborating evidence, and theprosecution attempted to rest its case on the victim's testimonyalone without satisfying those requirements, the end result wouldbe a judgment of acquittal. Post, at 564-565. Likewise,under Article 38.07, if the prosecution attempts to rest its caseon the victim's testimony alone without satisfying the Article'srequirements, the result would also be an acquittal. Thus,Hopt-type laws and Article 38.07 should be treated the same way forex post facto purposes.This argument seeks to make Hopt controlling by ignoringwhat the case says. Hopt specifically distinguished lawsthat "alter the degree, or lessen the amount or measure, of theproof" required to convict from those laws that merely respect whatkind of evidence may be introduced at trial. See supra, at545. The above argument, though, simply denies any meaningfuldistinction between those types of laws, on the premise that theyproduce the same results in some situations. See post, at563 ("Such a victim is of course not literally forbidden fromtestifying, but that cannot make the difference for Ex PostFacto Clause purposes between a sufficiency of the evidencerule and a witness competency rule"); post, at 571("Hopt cannot meaningfully be distinguished from the instantcase"). In short, the argument finds Hopt controlling byerasing the case's controlling distinction.The argument also pays no heed to the example laid down byFenwick's case. Surely we can imagine a witness competency rulethat would operate in a manner similar to the law in that case(e. g., a witness to a treasonous act is not

551competent to testify unless corroborated by another witness).Plainly, the imagined rule does not mean that Fenwick's case is notan example of an ex post facto law. But if that is so, whyshould it be any different for Article 38.07? Just as we canimagine a witness competency rule that would operate similarly tothe statute in Fenwick's case, the above argument imagines awitness competency rule that operates similarly to Article 38.07.If the former does not change our view of the law in Fenwick'scase, why should the latter change our view in the presentcircumstances?Moreover, the argument fails to account for what Calder'sfourth category actually says, and tells only half the story ofwhat a witness competency rule does. As for what Caldersays, the fourth category applies to "[e]very law that alters thelegal rules of evidence, and receives less, or different,testimony, than the law required at the time of the commission ofthe offence, in order to convict the offender." 3 Dall., at 390(emphasis deleted). The last six words are crucial. The relevantquestion is whether the law affects the quantum of evidencerequired to convict; a witness competency rule that (incertain instances at least) has the practical effect of telling uswhat evidence would result in acquittal does not reallyspeak to Calder's fourth category.As for relating only half the story, the dissent's argumentrests on the assertion that sometimes a witness competency rulewill result in acquittals in the same instances in which Article38.07 would also demand an acquittal. That may be conceded, but itis only half the story-and, as just noted, not the most relevanthalf. The other half concerns what a witness competency rule has tosay about the evidence "required ... in order to convict theoffender." The answer is, nothing at all. As mentioned earlier, seesupra, at 546547, prosecutors may satisfy all therequirements of any number of witness competency rules, but thissays absolutely nothing about whether they have introduced aquantum of

552evidence sufficient to convict the offender. Sufficiency of theevidence rules, however, tell us precisely that.35XFor these reasons, we hold that petitioner's convictions oncounts 7 through 10, insofar as they are not corroborated by otherevidence, cannot be sustained under the Ex Post FactoClause, because Texas' amendment to Article 38.07 falls withinCalder's fourth category. It seems worth remembering, atthis point, Joseph Story's observation about the Clause:

" 'If the laws in being do not punish an offender, let him gounpunished; let the legislature, admonished of the

35 The dissent contends that the witness competency rule "wouldproduce the same results" as a sufficiency rule, post, at564-565 (emphasis deleted), and above we have been willing toassume as much for argument's sake. But the dissent's statement isnot entirely correct. It would not be the witness competency rulethat would produce the same result, but that rule in combinationwith the normally operative sufficiency rule. Failure to complywith the requirements of Article 38.07, by contrast, would meanthat the evidence is insufficient to convict by the force ofthat law alone. That difference demonstrates the very distinctionbetween witness competency rules and sufficiency of the evidencerules, points to precisely the distinction that Hopt drew,and illustrates why (contrary to the dissent's contention) ourconclusion about Article 38.07 does not apply to "countlessevidentiary rules." Post, at 571.That is also why the dissent's statement that we have been"misdirected" by the plain text of Article 38.07 is wrong.Post, at 564. The dissent asserts that "any evidence"admitted under an applicable rule of evidence could "potentially"support a conviction, ibid., and therefore Article 38.07'sexplicit specification that a conviction "is supportable" if itsrequirements are met does not distinguish it from ordinary rules ofevidence. Once again, we point out that whether certain evidencecan support a conviction is not determined by the rule ofadmissibility itself, but by some other, separate, normallyoperative sufficiency of the evidence rule. The distinction thedissent finds illusive is that Article 38.07 itselfdetermines the evidence's sufficiency (that is why it is asufficiency of the evidence rule), while witness competency rulesand other ordinary rules of evidence do not (because they areadmissibility rules, not sufficiency rules). See also n. 23,supra.

553

defect of the laws, provide against the commission of futurecrimes of the same sort. The escape of one delinquent can neverproduce so much harm to the community, as may arise from theinfraction of a rule, upon which the purity of public justice, andthe existence of civil liberty, essentially depend.'" 3Commentaries on the Constitution § 1338, at 211, n. 2.

And, of course, nothing in the Ex Post Facto Clauseprohibits Texas' prospective application of its amendment.Accordingly, the judgment of the Texas Court of Appeals isreversed, and the case is remanded for further proceedings notinconsistent with this opinion.It is so ordered.JUSTICE GINSBURG, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR,and JUSTICE KENNEDY join, dissenting.The Court today holds that the amended version of Article 38.07of the Texas Code of Criminal Procedure reduces the amount of proofnecessary to support a sexual assault conviction, and that itsretroactive application therefore violates the Ex Post FactoClause. In so holding, the Court misreads both the Texas statuteand our precedents concerning the Ex Post Facto Clause.Article 38.07 is not, as the Court would have it, most accuratelycharacterized as a "sufficiency of the evidence rule"; it is in itsessence an evidentiary provision dictating the circumstances underwhich the jury may credit victim testimony in sexual offenseprosecutions. The amended version of Article 38.07 does nothingmore than accord to certain victims of sexual offenses fulltestimonial stature, giving them the same undiminished competencyto testify that Texas extends to witnesses generally in the State'sjudicial proceedings. Our precedents make clear that such a witnesscompetency rule validly may be applied to offenses committed beforeits enactment. I therefore dissent.

554***Petitioner Scott Leslie Carmell began sexually abusing hisstepdaughter, "K. M.," in the spring of 1991, when K. M. was 13years old. He continued to do so through March 1995. The specificquestion before the Court concerns Carmell's sexual assault on K.M. in June 1992, when K. M. was 14.1 K. M. did not inform anyoneabout that assault or about any of Carmell's other sexual advancestoward her until sometime around March 1995, when she told a friendand then her mother, Eleanor Alexander. Alexander went to thepolice, and Carmell was arrested and charged in a is-countindictment.Under Article 38.07 of the Texas Code of Criminal Procedure asit stood at the time of the assault, a conviction for sexualassault was supportable on the uncorroborated testimony of thevictim if the victim was younger than 14 years old at the time ofthe offense. If the victim was 14 years old or older, however, thevictim's testimony could support a conviction only if thattestimony was corroborated by other evidence. One form ofcorroboration, specifically described in Article 38.07 itself, wasknown as "outcry": The victim's testimony could support aconviction if he or she had informed another person, other than thedefendant, about the offense within six months of its occurrence.Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon 1983).Article 38.07 was amended in 1993. Under the new version, whichwas in effect at the time of Carmell's trial, the victim'suncorroborated testimony can support a conviction as long as thevictim was under 18 years of age at the time of the offense. Tex.Code Crim. Proc. Ann., Art. 38.07 (Vernon Supp. 2000). Thecorroboration requirement con-1 The Court correctly notes that Carmell's ex post factochallenge applies equally to three other counts on which he wasconvicted. Ante, at 518519. This Court's grant of review,however, was limited to the first question presented in Carmell'spetition for certiorari, which encompassed only the count chargingthe June 1992 assault. Pet. for Cert. 4.

555tinues in force for victims aged 18 or older, with a modifieddefinition of outcry not material here. Thus, under the version ofArticle 38.07 in effect at the time of Carmen's trial but not theversion in effect at the time of the offense, his conviction wassupportable by the uncorroborated testimony of K. M. The newversion of Article 38.07 was applied at Carmen's trial, and he wasconvicted.2 Carmen argues that the application of the new versionof Article 38.07 to his trial violated the Ex Post FactoClause, U. S. Const., Art. I, § 10, cl. 1.IA proper understanding of Article 38.07 of the Texas Code ofCriminal Procedure is central to this case. Accordingly, I turnfirst to the effect and purpose of that statute.The effect of Article 38.07 in sexual offense prosecutions isplain. If the victim is of a certain age, the jury, in assessingwhether the prosecution has met its burden of demonstrating guiltbeyond a reasonable doubt, must give no weight to her testimonyunless that testimony is corroborated, either by other evidencegoing directly to guilt or by "outcry." 3 For victims (such as K.M.) who were between the ages of 14 and2 The Texas Court of Appeals did not rule on whether the Statein fact did corroborate K. M.'s testimony at trial. I note thetestimony of K. M.'s mother that when she visited Carmell in jailand told him he needed to confess if he was sorry for what he haddone, he wrote "'adultery with [K. M.]''' on a piece of paper. 963S. W. 2d 833, 835 (Tex. App. 1998). That testimony might count ascorroboration. Because this question is outside the grant ofcertiorari, I (like the Court, see ante, at 519, n. 4) donot further address it.3 At first glance one might object that the statute permits thejury to give such testimony some weight, just not enough tosupport a conviction. See, e. g., ante, at546, n. 33 (contending that under the old Article 38.07, "thevictim's testimony alone is not inadmissible, it is justinsufficient"). A moment's reflection should reveal, however, thatthis distinction is illusory. If a particular item of evidencecannot by itself support a conviction, then the jury will not bepermitted to consider it unless and until corroborating evidence isintroduced.

55618 at the time of the offense, the 1993 amendment repealed thiscorroboration requirement. The amended version of Article 38.07thus permits sexual assault victims between 14 and 18 to have theirtestimony considered by the jury in the same manner and with thesame effect as that of witnesses generally in Texasprosecutions.This sort of corroboration requirement-still embodied in Article38.07 for victims aged 18 or older-is a common, if increasinglyoutmoded, rule of evidence. Its purpose is to rein in theadmissibility of testimony the legislature has deemedinsufficiently credible standing alone. Texas' requirement ofcorroboration or outcry, like similar provisions in otherjurisdictions, is premised on a legislative judgment thataccusations made by sexual assault victims above a certain age arenot independently trustworthy. See Villareal v.State, 511 S. W. 2d 500, 502 (Tex. Crim. App. 1974) ("Thebasis of this rule is that the failure to make an outcry orpromptly report the rape diminishes the credibility of theprosecutrix."); cf., e. g., Battle v. United States,630 A. 2d 211, 217 (D. C. 1993) (evidence of outcry "rebuts animplied charge of recent fabrication, which springs from somejurors' assumptions that sexual offense victims are generally lyingand that the victim's failure to report the crime promptly isinconsistent with the victim's current statement that the assaultoccurred").Legislatures in many States, including Texas, have enactedsimilar evidentiary provisions requiring corroboration for thetestimony of other categories of witnesses, particularlyaccomplices. See, e. g., Tex. Code Crim. Proc. Ann.,Art. 38.14 (Vernon Supp. 2000) ("A conviction cannot be had uponthe testimony of an accomplice unless corroborated by otherevidence tending to connect the defendant with the offensecommitted .... "). Such provisions-generally on the wane but stillin force in several States-are, like Article 38.07, designed toensure the credibility of the relevant witness. See, e. g.,State v. Haugen, 448 N. W. 2d 191, 194

557(N. D. 1989) ("The purpose of corroborating evidence is to showthat accomplices are reliable witnesses and worthy of credit.");Holladay v. State, 709 S. W. 2d 194, 196 (Tex. Grim.App. 1986) ("Because such a witness [i. e., an accomplice]is usually deemed to be corrupt, his testimony is always lookedupon with suspicion."); Fleming v. State, 760 P. 2d208, 209210 (Okla. Grim. App. 1988) ("The purpose behind therequirement of corroboration is to protect an accused from beingfalsely implicated by another criminal in the hope of clemency, adesire for revenge, or for any other reason.").I make no judgment here as to the propriety of the TexasLegislature's decision to view the testimony of certain sexualassault victims in the same light as that of accomplices. Expost facto analysis does not depend on an assessment of astatute's wisdom. For current purposes it suffices to note thatArticle 38.07's corroboration requirement rests on the samerationale that underpins accomplice corroboration requirements: thenotion that a particular witness, because of his or her role in theevents at issue, might not give trustworthy testimony. SeeReed v. State, 991 S. W. 2d 354, 361 (Tex. App. 1999)("Generally speaking, the need to corroborate the testimony of asexual assault victim stems from the notion that the victim, ifover the age of consent, could be an accomplice rather than avictim."); Hernandez v. State, 651 S. W. 2d 746, 751(Tex. Grim. App. 1983) (concurring opinion adopted on rehearing)(Article 38.07's corroboration requirement "was meant to dealonly with testimony of a victim of a sexual offense who, forone reason or another, was held to be an 'accomplice witness' and,perforce, whose testimony must be corroborated.").The history of Article 38.07 bears out the view that its focushas always been on the competency and credibility of the victim aswitness. The origins of the statute could be traced to the factthat in Texas, "for many years a seduced female was an incompetentwitness as a matter of law." Holladay, 709 S. W. 2d, at 200.See, e. g., Cole v. State, 40

558Tex. 147 (1874); see also Hernandez, 651 S. W. 2d, at751-752 (tracing the current Article 38.07 to the earlier seductionvictim competency rule). In 1891, this common-law disability waslifted by statute and replaced by a corroboration requirement: "Inprosecutions for seduction ... the female alleged to have beenseduced shall be permitted to testify; but no conviction shall behad upon the testimony of the said female, unless the same iscorroborated by other evidence tending to connect the defendantwith the offense charged." Tex. Rev. Crim. Stat., Tit. 8, ch. 7,Art. 789 (1911). The application of this statute to offensescommitted before its enactment was upheld by the Texas courts onthe authority of Hopt v. Territory of Utah, 110 U. S. 574 (1884). SeeMrous v. State, 31 Tex. Crim. App. 597, 21 S. W. 764(1893). The corroboration requirement for seduction prosecutions,recodified in 1965 at Tex. Code Crim. Proc. Ann., Art. 38.07,remained in effect until 1973, when the entire 1925 Penal Code(including the offense of seduction) was repealed.In 1975, Article 38.07 was enacted substantially in its presentform. As revised, the article covered all sexual offenses inChapter 21 of the Texas Penal Code; however, it contained noexpress exemption from the corroboration requirement for thetestimony of the youngest victims. Tex. Code Crim. Proc. Ann., Art.38.07 (Vernon 1979). The exemption for victims under the age of 14was added in 1983, and extended in 1993 to cover those under theage of 18, as already described. As initially proposed, the 1993change would have eliminated the corroboration/outcry requirementaltogether. House Research Organization, Texas House ofRepresentatives, Daily Floor Report 13 (Mar. 15, 1993), Lodging ofPetitioner. Supporters of the proposal maintained that "[v]ictimsin sexual assault cases are no more likely to fantasize ormisconstrue the truth than the victims of most other crimes, whichdo not require corroboration of testimony or previous 'outcry.'Juries can decide if a witness is credible .... Most states nolonger require this type of corrobora-

559tion; neither should Texas." Id., at 14. The historicaldevelopment of Article 38.07 reveals a progressive alleviation ofrestrictions on the competency of victim testimony, not alegislative emphasis on the quantum of evidence needed toconvict.The version of Article 38.07 applied at Carmell's trial wasthus, in both effect and purpose, an evidentiary rule governing theweight that may be given to the testimony of sexual assault victimswho had attained the age of 14. The Court's efforts to paint it assomething more than that are detached from the statute's mooringsand are consequently unpersuasive.To begin with, it is beyond doubt that Article 38.07 does notestablish an element of the offense. See Love v.State, 499 S. W. 2d 108, 108 (Tex. Crim. App. 1973)("[O]utcry is not one of the elements of the offense charged."). Toconvict a defendant of sexual assault in Texas today as before1993, the prosecution need not introduce the victim's testimony atall, much less any corroboration of that testimony. The Court istherefore less than correct in asserting that "[u]nder the law ineffect at the time the acts were committed, the prosecution's casewas legally insufficient and petitioner was entitled to a judgmentof acquittal, unless the State could produce both the victim'stestimony and corroborative evidence." Ante, at 530.Under both the old and new versions of the statute, a convictioncould be sustained on the testimony of a single third-partywitness, on purely circumstantial evidence, or in any number ofother ways-so long as the admissible evidence presented issufficient to prove all of the elements of the offense beyond areasonable doubt.4 And under either version of Article 38.07, ofcourse,4 Not only is corroborated victim testimony not necessaryfor a conviction under the former version of Article 38.07, it isnot always sufficient. Under both the old and new versionsof the statute, the prosecution's evidence will not support aconviction unless it is adequate to prove all the elements of theoffense beyond a reasonable doubt.

560the accused could be convicted, like any other defendant, on thebasis of a guilty plea or a voluntary confession. Article 38.07, inother words, does not define "sexual assault proven by corroboratedvictim testimony" as a distinct offense from "sexual assault."Rather, the measure operates only to restrict the State's method ofproving its case.5And it does so without affecting in any way the burden ofpersuasion that the prosecution must satisfy to support aconviction. Under both the old and new versions of the statute, theapplicable standard is proof beyond a reasonable doubt. Theamendment in 1993 that repealed the corroboration requirement forvictims between the ages of 14 and 18 did nothing to change thatstandard.The Court recognizes that Article 38.07 does not affect theapplicable burden of persuasion, see ante, at 539, butseveral times it asserts that the amended version of the statute"changed the quantum of evidence necessary to sustaina conviction," ante, at 530 (emphasis added). See alsoante, at 531 (amended law "permitted petitioner to beconvicted with less than the previously required quantum ofevidence"); ante, at 532-533 (amended law "[r]educ[es] thequantum of evidence necessary to meet the burden ofproof" (emphases added)). If by the word "quantum" the Court meansto refer to the burden of persuasion, these statements are simplyincorrect and contradict the Court's own acknowledgment. And if, asappears more likely, "quantum" refers to some requiredquantity or amount of proof, the Court is also wrong.The partial repeal of Article 38.07's corroboration requirement didnot change the quantity of proof necessary to convict inevery case, for the simple reason that Texas has never required theprosecution to introduce any particular5 By the same reasoning, the repeal of the corroborationrequirement for victims between the ages of 14 and 18 plainly didnot deprive sexual assault defendants of any defense theypreviously enjoyed.

561number of witnesses or items of proof to support a sexualassault conviction.6The Court also declares several times that the amended versionof Article 38.07 "subverts the presumption of innocence." Seeante, at 532; see also ante, at 533, nn. 22, 23, 546.The phrase comes from Cummings v. Missouri, 4 Wall.277 (1867), in which the Court struck down a series of post-CivilWar amendments to the Missouri Constitution that imposed penaltieson persons unable or unwilling to swear an oath that they had notaided the Confederacy. The amendments, the Court said inCummings, "subvert the presumptions of innocence" because"[t]hey assume that the parties are guilty [and] ... call upon[them] to establish their innocence" by swearing the oath.Id., at 328. Nothing of the kind is involved here. Article38.07 did not impose a presumption of guilt on Carmell and thensaddle him with the task of overcoming it. The burden of persuasionremained at all times with the State. See Tex. Code Crim. Proc.Ann., Art. 38.03 (Vernon Supp. 2000). Carmell's presumption ofinnocence is thus untouched by the current Article 38.07'srecognition of K. M.'s full testimonial stature.The Court places perhaps its greatest weight on the "sufficiencyof the evidence" label, see ante, at 547-552, but the labelwill not stick. As just noted, Article 38.07 has never dictatedwhat it takes in all cases, quantitatively or qualitatively, forevidence to be sufficient to convict. To the contrary, under boththe old and new versions of the statute the6 Moreover, even in a case founded on the victim's testimony,the pre1993 version of Article 38.07 would permit the prosecutionto corroborate that testimony without introducing any additionalevidence going to the defendant's guilt, because corroborationcould be provided by outcry, which is hearsay and inadmissible toprove the truth of the matter asserted. See Heckathorne v.State, 697 S. W. 2d 8, 12 (Tex. App. 1985) ("[A]n outcryshould not be admitted for its truth, but merely as evidence thatthe victim informed someone of the offense.").

562prosecution's admissible evidence will be sufficient to supporta conviction if a rational factfinder presented with that evidencecould find the defendant guilty beyond a reasonable doubt. The 1993repeal of the corroboration requirement for victims between theages of 14 and 18 did not lower that "sufficiency of the evidence"hurdle; it simply expanded the range of methods the State could useto surmount it.To be sure, one might descriptively say in an individual casethat the uncorroborated testimony of the victim would be"sufficient" to convict under the new version of Article 38.07 and"insufficient" under the old. But that cannot be enough toinvalidate a statute as ex post facto. If it were, then allevidentiary rules that work to the defendant's detriment would beunconstitutional as applied to offenses committed before theirenactment-an outcome our cases decisively reject. See infra,at 570-571 (discussing Thompson v. Missouri, 171 U. S. 380 (1898), andHopt v. Territory of Utah, 110 U. S. 574 (1884),which upheld the retroactive application of evidentiary rulesgoverning the authentication of documents and the competency offelons to testify, respectively). A defendant whose convictionturned, for example, on an item of hearsay evidence consideredinadmissible at the time of the offense but made admissible by alater enacted statute might accurately describe the new statute asone that permits conviction on less evidence than was "sufficient"under prior law. But our precedents establish that such a defendanthas no valid ex post facto claim. See infra, at570-571. N either does Carmell.The Court attempts to distinguish Article 38.07 fromgarden-variety evidentiary rules by asserting that the latter "areordinarily evenhanded, in the sense that they may benefit eitherthe State or the defendant in any given case." Ante, at 533,n. 23. The truth of this assertion is not at all clear. Evidence isnever admissible in its own right; it must be admitted for somepurpose. Rules of admissibility typically take that basic fact intoaccount, often restricting the

563use of evidence in a way that systematically disadvantages oneside. Consider, for example, a rule providing that evidence of arape victim's sexual relations with persons other than the accusedis admissible to prove consent, or a rule providing that evidenceof a sexual assault defendant's prior sexual offenses isinadmissible to show a propensity to commit that type of crime. Astatute repealing either of the above rules would "alwaysrun in the prosecution's favor ... [by] mak[ing] it easier toconvict the accused." Ante, at 546.7 Yet no one (untiltoday) has suggested that such a statute would be ex postfacto as applied to offenses committed before itsenactment.The Court resists the conclusion that Article 38.07 functions asa rule of witness competency by asserting that "[b]oth before andafter the amendment, the victim's testimony was competentevidence." Ante, at 544. In all but the most technical sensethat blanket statement is dubious. If the victim was 14 years oldor older at the time of the offense (18 or older under the amendedstatute) and her testimony is unbolstered by corroboration oroutcry, the jury may not credit that testimony in determiningwhether the State has met its burden of proof. Such a victim is ofcourse not literally forbidden from testifying, but that cannotmake the difference for Ex Post Facto Clause purposesbetween a sufficiency of the evidence rule and a witness competencyrule. Evidence to which the jury is not permitted to assign weightis, in reality, incompetent evidence.7 Cf. Fed. Rules Evid. 412(a)(1) (restricting admissibility of"[e]vidence offered to prove that any alleged victim [of sexualmisconduct] engaged in other sexual behavior"); 412(b)(1)(B)(providing that "evidence of specific instances of sexual behaviorby the alleged victim with respect to the person accused" isadmissible to prove consent); 413(a) (providing that "evidence ofthe defendant's commission of another offense or offenses of sexualassault is admissible" in sexual assault cases notwithstanding Rule404(b)'s general prohibition on the introduction of prior bad actsevidence "to show action in conformity therewith").

564Perhaps the Court has been misdirected by the wording of Article38.07, which speaks in both its old and new versions of evidenceupon which a "conviction ... is supportable." See ante, at547. That sounds like a "sufficiency of the evidence rule," untilone realizes that any evidence admissible in a criminal case-i.e., any evidence that a jury is entitled to consider indetermining whether the prosecution has met its burden ofpersuasion-is at least potentially evidence upon which a"conviction ... is supportable." Conversely, as I have just said,evidence to which the jury may give no weight in making thatdetermination is effectively inadmissible.8In short, no matter how it is phrased, the corroborationrequirement of Article 38.07 is functionally identical to aconditional rule of witness competency. If the former version ofArticle 38.07 had provided instead that "the testimony of thevictim shall be inadmissible to prove the defendant's guilt unlesscorroborated," it would produce the8 It is thus no wonder that before 1986 the general rule ofwitness competency was codified at Article 38.06 of the Texas Codeof Criminal Procedure, and the statute now at issue immediatelyfollowed it. Article 38.07 was an exception to the general rulelaid out in Article 38.06. It is logical to put an exception rightafter the rule. Yet the Court draws the opposite inference fromthat juxtaposition. See ante, at 545, n. 32.The Court's related observation that Texas' general witnesscompetency statute "already contains its own provision respectingchild witnesses," ante, at 544-545, is true but irrelevant.Article 38.07's corroboration requirement has nothing to do withthe diminished credibility of child witnesses. Indeed, the statutehas always permitted juries to credit fully the testimony of sexualoffense victims below a certain age (first 14, then 18)without any corroboration, the reason apparently being that thelegislature considers victims under a certain age to be too youngto consent to sex and then lie about it. See, e. g., Scogganv. State, 799 S. W. 2d 679, 681 (Tex. Crim. App. 1990);Hernandez v. State, 651 S. W. 2d 746,752-753 (Tex.Crim. App. 1983) (concurring opinion adopted on rehearing). Thecorroboration requirement attaches only to victims above acertain age, and thus would not be appropriate for inclusion in a"provision respecting child witnesses."

565same results as the actual statute in every case. Not "incertain instances," ante, at 551, or "in some situations,"ante, at 550, but in every case.9 Recognizing thisequivalency, the Texas Court of Criminal Appeals has noted that theTexas accomplice corroboration rule is "a mere rule of evidence"even though "statutorily worded as a sufficiency standard."Malik v. State, 953 S. W. 2d 234, 240, n. 6(1997).10In sum, the function and purpose of the corroborationrequirement embedded in the former version of Article 38.07 was toensure the credibility of the victim's testimony, not otherwise toimpede the defendant's conviction. Our precedents, I explain next,make clear that the retroactive repeal9 The Court contends that the effect of Article 38.07 isdistinct from that of a witness competency rule becausenoncompliance with the former dictates acquittal ex propriovigore while noncompliance with the latter dictates acquittal"in combination with the normally operative sufficiency rule."Ante, at 552, n. 35. This is a distinction without adifference, because the "normally operative sufficiency rule" inquestion-when the prosecution submits no admissible evidence, itscase will be deemed insufficient-is a bedrock requirement of dueprocess, applicable in every criminal trial.10 The Court observes that the characterization of a state lawunder the Ex Post Facto Clause is a federal question.Ante, at 544, n. 31. This undoubtedly correct observationstands in some tension, however, with the Court's reliance on theassertion that "Texas courts treat Article 38.07 as a sufficiencyof the evidence rule." Ante, at 518, n. 2. In any event, thelatter assertion is inaccurate, as Malik's discussion of theaccomplice corroboration rule suggests. It is true that a trialcourt's failure to comply with Article 38.07 results on appeal inthe entry of an order of acquittal. But it is not true that theremedy on appeal for the introduction of inadmissible evidence isalways a remand for a new trial. When the only evidence introducedby the prosecution is evidence that may not be considered by a juryin determining the defendant's guilt, the proper result is alwaysacquittal. By the same reasoning, as this Court decided just thisTerm, when a court of appeals has found that evidence wasimproperly admitted in a civil trial and that the remainingevidence is insufficient, it may enter judgment as a matter of lawrather than ordering a new trial. Weisgram v. MarleyCo., 528 U. S.440 (2000).

566of such an evidentiary rule does not violate the Ex PostFacto Clause.IIThe Ex Post Facto Clause, this Court has said repeatedly,furthers two important purposes. First, it serves "to assure thatlegislative Acts give fair warning of their effect and permitindividuals to rely on their meaning until explicitly changed."Weaver v. Graham, 450 U. S. 24, 28-29(1981).11 Second, it "restricts governmental power by restrainingarbitrary and potentially vindictive legislation." Id., at29; see also Landgraf v. USI Film Products, 511 U. S. 244, 267(1994); Miller v. Florida, 482 U. S. 423, 429-430(1987). The latter purpose has much to do with the separation ofpowers; like its textual and conceptual neighbor the Bill ofAttainder Clause, the Ex Post Facto Clause aims to ensurethat legislatures do not meddle with the judiciary's task ofadjudicating guilt and innocence in individual cases.Weaver, 450 U. S., at 29, n. 10.The Court does not even attempt to justify its extension of theClause in terms of these two fundamental purposes. That isunderstandable, for to day's decision serves neither purpose. Thefirst purpose (fair warning and reliance), vital as it is, cannottenably be relied upon by Carmell. He had ample notice that theconduct in which he engaged was illegal. He certainly cannot claimto have relied in any way on the preamendment version of Article38.07: He tendered11 Today's opinion apart, see ante, at 531, n. 21, thisCourt has consistently stressed "'lack of fair notice'" as one ofthe "central concerns of the Ex Post Facto Clause."Lynce v. Mathis, 519 U. S. 433, 441 (1997)(quoting Weaver v. Graham, 450 U. S. 24, 30 (1981)).See also Landgraf v. USI Film Products, 511 U. S. 244, 266-267(1994); Miller v. Florida, 482 U. S. 423, 430 (1987);Weaver, 450 U. S., at 28-29; Marks v. UnitedStates, 430 U. S.188, 191-192 (1977). The implausibility of ex antereliance on rules of admissibility like the one at issue here helpsexplain why the Ex Post Facto Clause has never been held toapply to changes in such rules.

567no reason to anticipate that K. M. would not report the assaultwithin the outcry period, nor any cause to expect thatcorroborating evidence would not turn up sooner or later. Nor isthe Clause's second purpose relevant here, for there is noindication that the Texas Legislature intended to single out thisdefendant or any class of defendants for vindictive or arbitrarytreatment. Instead, the amendment of Article 38.07 simply broughtthe rules governing certain victim testimony in sexual offenseprosecutions into conformity with Texas law governing witnesstestimony generally.In holding the new Article 38.07 unconstitutional as applied toCarmell, the Court relies heavily on the fourth category of expost facto statutes enumerated by Justice Chase in his opinionin Calder v. Bull, 3 Dall. 386, 390 (1798):"Every law that alters the legal rules ofevidence, and receives less, or different, testimony, thanthe law required at the time of the commission of the offence,in order to convict the offender." Justice Chase'sformulation was dictum, of course, because Calder involved acivil statute and the Court held that the statute was not expost facto for that reason alone. Moreover, Justices Patersonand Iredell in their own seriatim opinions gave no hint thatthey considered rules of evidence to fall within the scope of theClause. See id., at 395-397 (Paterson, J.); id., at398-400 (Iredell, J.). Still, this Court has come to view JusticeChase's categorical enumeration as an authoritative gloss on theEx Post Facto Clause's reach. Just a decade ago inCollins v. Youngblood, 497 U. S. 37 (1990), forinstance, this Court reiterated that "the prohibition which may notbe evaded is the one defined by the Calder categories."Id., at 46.If those words are placed in the context of the full text of theCollins opinion, however, a strong case can be made thatCollins pared the number of Calder categories down tothree, eliminating altogether the fourth category on which theCourt today so heavily relies. As long ago as 1925, inBeazell v. Ohio, 269 U. S. 167, the Courtcataloged ex post

568facto laws without mentioning Chase's fourth category atall. Id., at 169-170. And in Collins the Court citedwith apparent approval Beazell's omission of the fourthcategory, 497 U. S., at 43, n. 3, declaring that "[t]heBeazell formulation is faithful to our best knowledge of theoriginal understanding of the Ex Post Facto Clause:Legislatures may not retroactively alter the definition of crimesor increase the punishment for criminal acts." Id., at 43.Collins concluded by reciting in the plainest terms theprohibitions laid down by the Ex Post Facto Clause: Astatute may not "punish as a crime an act previously committed,which was innocent when done; nor make more burdensome thepunishment for a crime, after its commission; nor deprive onecharged with crime of any defense available according to law at thetime when the act was committed." Id., at 52. Thisrecitation conforms to Calder's first three categories, butnot the fourth; changes in evidentiary rules are nowherementioned.12The majority asserts that the Court has repeatedly endorsedJustice Chase's formulation, "including, in particular, the fourthcategory," and it offers an impressive-looking string citation insupport of the claim. Ante, at 525. Yet all of those casessimply quoted or paraphrased Chase's enumeration, a mechanical taskthat naturally entailed a recitation of the fourth category. Notone of them depended on that category for the judgment the Courtreached.13 Nei-12 In California Dept. of Corrections v. Morales,514 U. S. 499,504-505 (1995), the Court similarly enumerated the categories ofex post facto laws without mentioning the fourthcategory.13 The Court in Cummings v. Missouri, 4 Wall. 277(1867), invoked the fourth category, see id., at 328, butthat invocation was hardly necessary to the Court's holding. InCummings, as already noted, the Court invalidated on Bill ofAttainder Clause and Ex Post Facto Clause grounds stateconstitutional amendments that imposed punishment on persons unableto swear an oath that they had not taken up arms against the Unionin the Civil War. The Court recognized that the challengedamendments, though framed in terms of a method of proof, were"aimed at past acts,

569ther did Justice Washington's opinion in Ogden v.Saunders, 12 Wheat. 213 (1827), which is quoted extensivelyby the Court, ante, at 532. In fact, the Court has neveruntil today relied on the fourth Calder category toinvalidate the application of a statute under the Ex PostFacto Clause.It is true that the Court has on two occasions struck down asex post facto the retroactive application of rules governingthe functioning of the criminal trial process-but both decisionshave since been overruled. In Kring v. Missouri, 107U. S. 221 (1883), the Court held that Missouri was forbidden toapply retroactively a state constitutional amendment providing thata plea of guilty to second-degree murder would not automaticallyserve on retrial as an acquittal of the charge of first-degreemurder. And in Thompson v. Utah, 170 U. S. 343 (1898), theCourt held that a change in state law reducing the number of petitjurors in criminal trials from 12 to 8 was ex post factobecause it deprived the defendant of "a substantial right involvedin his liberty." Id., at 352. The Court in Collinsoverruled both Kring and Thompson v. Utah,concluding that neither decision was "consistent with theunderstanding of the term 'ex post facto law' at the timethe Constitution was adopted." Collins, 497 U. S., at 47,50, 51-52.The Court today offers a different reading of Collins. Itconcludes that Collins overruled Kring andThompson v. Utah because those cases improperlyconstrued the Ex Post Facto Clause to cover all "substantialprotections," and that the fourth Calder categoryconsequently remains intact.and not future acts," id., at 327, for only those who hadaided the Confederacy would be unable to take the expurgatory oath.The Court held that the amendments violated Calder's firstcategory by retroactively creating new offenses, 4 Wall., at327-328, and violated the third category by retroactively imposingnew punishments, id., at 328. As for Calder's fourthcategory, the Court said only that the amendments "subvert[ed] thepresumptions of innocence" by "assum[ing] that the parties [we]reguilty." 4 Wall., at 328. As already discussed, supra, at561, that analysis is of no help to Carmell here.

570That is a plausible reading of Collins, and I might wellbe prepared to accept it, were the issue presented here. But it isnot. For purposes of this case, it does not matter whetherCollins eliminated the fourth Calder category or leftit undisturbed. For even if the fourth category remains viable, ourprecedents make clear that it cannot be stretched to fit thestatutory change at issue here. Those precedentsdecisions thatfully acknowledged the fourth Calder category-firmlyestablish that retroactively applied changes in rules concerningthe admissibility of evidence and the competency of witnesses donot raise Ex Post Facto Clause concerns.In Thompson v. Missouri, 171 U. S. 380 (1898),this Court upheld against ex post facto attack theretroactive application of a statute that permitted theintroduction of previously inadmissible evidence to demonstrate theauthenticity of disputed writings. The new statute, the Courtreasoned, "did nothing more than remove an obstacle arising out ofa rule of evidence that withdrew from the consideration of the jurytestimony which, in the opinion of the legislature, tended toelucidate the ultimate, essential fact to be established, namely,the guilt of the accused." Id., at 387.The case most similar to the one before us is Hopt v.Territory of Utah, 110 U. S. 574 (1884). Inthat case, a statute in effect at the time of the offense butrepealed by the time of trial provided that felons were incompetentto testify. The defendant, whose conviction for capital murder hadbeen based in large part on the testimony of a felon, claimed thatthe application of the new law to his trial was ex postfacto. The Court rejected the defendant's claim, adoptingreasoning applicable to the instant case:

"Statutes which simply enlarge the class of persons who may becompetent to testify in criminal cases are not ex post factoin their application to prosecutions for crimes committed prior totheir passage; for they do

571

not attach criminality to any act previously done, and which wasinnocent when done; nor aggravate any crime theretofore committed;nor provide a greater punishment therefor than was prescribed atthe time of its commission; nor do they alter the degree, or lessenthe amount or measure, of the proof which was made necessary toconviction when the crime was committed." Id., at 589.

As the quoted passage shows, the Court in Hopt rejectedthe defendant's Ex Post Facto Clause claim while retainingCalder's fourth category. The same outcome should obtaintoday, for Hopt cannot meaningfully be distinguished fromthe instant case.The Court asserts that "Article 38.07 plainly fits" the fourthCalder category, because "[r]equiring only the victim'stestimony to convict, rather than the victim's testimony plus othercorroborating evidence is surely 'less testimony required toconvict' in any straightforward sense of those words." Ante,at 530. Yet to declare Article 38.07 ex post facto on thatbasis is to overrule Hopt without saying so. For if theamended version of Article 38.07 requires "less testimony ... toconvict," then so do countless evidentiary rules, including thefelon competency rule whose retroactive application we upheld inHopt. In both this case and Hopt, a conviction basedon evidence previously deemed inadmissible was sustained pursuantto a broadened rule regarding the competency of testimonialevidence. The mere fact that the new version of Article 38.07 makessome convictions easier to obtain cannot be enough to preclude itsretroactive application. "Even though it may work to thedisadvantage of a defendant, a procedural change is not ex postfacto." Dobbert v. Florida, 432 U. S. 282, 293(1977).In short, the Court's expansive new reading of the Ex PostFacto Clause cannot be squared with this Court's priordecisions. Rather than embrace such an unprecedented approach, Iwould advance a "commonsense understanding of

572Calder's fourth category," ante, at 530, one thatcomports with our precedents and with the underlying purposes ofthe Ex Post Facto Clause: Laws that reduce the burden ofpersuasion the prosecution must satisfy to win a conviction may notbe applied to offenses committed before their enactment. To besure, this reading would leave the fourth category withconsiderably less independent effect than it would have had inJustice Chase's day, given our intervening decisions establishingthe "beyond a reasonable doubt" standard as a constitutionalminimum under the Due Process Clause. See, e. g., In reWinship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U. S. 307 (1979). Butit is not a reading that necessarily renders the categorymeaningless even today. Imagine, for example, a statute requiringthe prosecution to prove a particular sentencing enhancementfactor-leadership role in the offense, say, or obstruction ofjustice-beyond a reasonable doubt. A new statute providing that thefactor could be established by a mere preponderance of the evidencemight rank as ex post facto if applied to offenses committedbefore its enactment. The same might be said of a statuteretroactively increasing the defendant's burden of persuasion as toan affirmative defense.Burdens of persuasion are qualitative tests ofsufficiency.Calder's fourth category, however, encompassesquantitative sufficiency rules as well, for Justice Chasedid speak of a law that "receives less ... testimony, thanthe law required at the time of the commission of theoffence." 3 Dall., at 390 (emphasis added). Cf. Hopt, 110 U.S., at 590 ("Any statutory alteration of the legal rules ofevidence which would authorize conviction upon less proof, inamount or degree, than was required when the offencewas committed" might be ex post facto. (emphasis added)).Quantitative sufficiency rules are rare in modern Anglo-Americanlaw, but some do exist. Criminal statutes sometimes limit theprosecution to a particular form of proof, for example, thetestimony of two witnesses to the same overt act. In modernAnglo-

573American law, such instances have been almost exclusivelyconfined to two contexts: perjury, see Weiler v. UnitedStates, 323 U. S.606 (1945), and treason, see U. S. Const., Art. III, § 3, cl. 1("No Person shall be convicted of Treason unless on the Testimonyof two Witnesses to the same overt Act, or on Confession in openCourt."). See generally Wigmore, Required Numbers of Witnesses; ABrief History of the Numerical System in England, 15 Harv. L. Rev.83,100108 (1901).The treason statute in effect at the time of John Fenwick'sconspiracy, like the Treason Clause of our Constitution, embodiedjust such a quantitative sufficiency rule: As long as the accusedtraitor put the prosecution to its proof by pleading not guilty,the sworn testimony of two witnesses was necessary to support aconviction. The Court describes at great length the attainder ofFenwick, which served as a cautionary model for Justice Chase'sexplication of the fourth category in Calder. Seeante, at 526-530.14 This excursion into post-RestorationEnglish history is diverting, but the Court's statement that "thecircumstances of petitioner's case parallel those of Fenwick's case300 years earlier," ante, at 530, simply will not wash. Thepreamendment version of Article 38.07 is nothing like thetwo-witness rule on which Fenwick vainly relied.15First, the preamendment version of Article 38.07, unlike atwo-witness rule, did not apply indifferently to all who testify.Rather, it branded a particular class of witnesses-14 Tellingly, the Court offers no evidence that anyone at thetime of the Framers considered witness corroboration requirementsof the type involved here to fall within the scope of the expost facto prohibition.15When the Texas Legislature wants to enact a two-witness rule,it knows how to do so. See Tex. Code Crim. Proc. Ann., Art. 38.15(Vernon Supp. 2000) ("No person can be convicted of treason exceptupon the testimony of at least two witnesses to the same overt act,or upon his own confession in open court."); Art. 38.18(a) ("Noperson may be convicted of perjury or aggravated perjury if proofthat his statement is false rests solely upon the testimony of onewitness other than the defendant.").

574sexual assault victims aged 14 or older-as less competent thanothers to speak in court. Second, as I have already described, theTexas statute did not restrict the State to one prescribed form ofproof. Both before and after the 1993 amendment, introduction ofthe victim's corroborated testimony was neither required nornecessarily sufficient to sustain a conviction. Prosecutors'compliance with both the old and new versions of Article 38.07 thus"says absolutely nothing about whether they have introduced aquantum of evidence sufficient to convict the offender."Ante, at 547, 551-552.16 On the contrary, the onlysufficiency rule applicable in Texas sexual offense prosecutionshas always been a qualitative one: The State's evidence must besufficient to prove every element of the offense beyond areasonable doubt.That should not be surprising. It makes little sense in ourmodern legal system to conceive of standards of proof inquantitative terms. In a civil case, the winner is the party thatproduces better evidence, not the party that producesmore evidence. Similarly, in a criminal trial theprosecution need not introduce any fixed amount of evidence, solong as the evidence it does introduce could persuade a rationalfactfinder beyond a reasonable doubt. "Our system of justice restson the general assumption that the truth is not to be determinedmerely by the number of witnesses on each side of a controversy. Ingauging the truth of conflicting evidence, a jury has no simpleformulation of weights and measures on which to rely. Thetouchstone is always credibility; the ultimate measure oftestimonial worth is quality and not16 Noncompliance with the former version of Article 38.07does say something: The statute mandates acquittal if theprosecution comes forward with no evidence beyond the victim'stestimony, which is deemed unreliable standing alone. But as theCourt itself recognizes, "a witness competency rule that ... hasthe practical effect of telling us what evidence would result inacquittal does not really speak to Calder's fourthcategory." Ante, at 551.

575quantity." Weiler, 323 U. S., at 608. If the Court wishesto rely on the fourth Calder category to render Texas'altered evidentiary rule prospective only, it should do soforthrightly by overruling Hopt and Thompson v.Missouri, rather than by attempting to portray Article 38.07as a quantitative sufficiency rule indistinguishable from thetwo-witness requirement that figured in John Fenwick's case.***In sum, it is well settled (or was until today) that retroactivechanges to rules concerning the admissibility of evidence and thecompetency of witnesses to testify cannot be ex post facto.Because Article 38.07 is in both function and purpose a rule ofadmissibility, Thompson v. Missouri, Hopt, Beazell,and Collins dictate that its retroactive application doesnot violate the Ex Post Facto Clause. That conclusioncomports perfectly with the dual purposes that underlie the Clause:ensuring fair notice so that individuals can rely on the laws inforce at the time they engage in conduct, and sustaining theseparation of powers while preventing the passage of vindictivelegislation. The Court today thus not only brings about an"undefined enlargement of the Ex Post Facto Clause,"Collins, 497 U. S., at 46, that conflicts with establishedprecedent, it also fails to advance the Clause's fundamentalpurposes. For these reasons, I dissent.