430 U.S. 349 (1977)
On June 30, 1973, the petitioner assaulted his wife with a blunt instrument, causing her death.1
On January 10, 1974, after a trial in the Circuit Court of Citrus County, Florida, a jury found him guilty of first-degree murder.2
The separate sentencing hearing required by Florida law in capital cases was held later on the same day.3 The State merely introduced two photographs of the decedent, otherwise relying on the trial testimony.4 Petitioner testified that he had consumed a vast quantity of alcohol during a day-long drinking spree which preceded the crime and professed to have almost no recollection of the assault itself.5
After hearing this evidence the jury was instructed to determine by a majority vote whether the State had proved one of the aggravating circumstances, whether mitigating circumstances outweighed any such aggravating circumstance, and based on that determination, whether the defendant should be sentenced to life or death.6 After the jury retired to deliberate, the judge announced that he was going to order a presentence investigation of petitioner.7 Twenty-five minutes later the jury returned its advisory verdict finding that the mitigating circumstances outweighed the aggravating circumstances and advising the court to impose a life sentence.8
The presentence investigation report was completed by the Florida Parole and Probation Commission on January 28, 1974.9 On January 30, 1974, the trial judge entered findings of fact and a judgment sentencing petitioner to death.10 There is no dispute about the fact that the presentence investigation report contained a confidential portion which was not disclosed to defense counsel.11 The trial judge did not comment on the contents of the confidential portion.12
On appeal to the Florida Supreme Court, petitioner argued that the sentencing court had erred in considering the presentence investigation report, including the confidential portion, in making the decision to impose the death penalty.13 The per curiam opinion of the Supreme Court did not specifically discuss this contention but merely recited the trial judge’s finding, stated that the record had been carefully reviewed, and concluded that the conviction and sentence should be affirmed.14 The record on appeal, however, did not include the confidential portion of the presentence report.15 Two justices dissented, regarding the evidence as sufficient to establish a mitigating circumstance as a matter of law and concluding that it was fundamental error for the trial judge to rely on confidential matter not provided to the parties.16
Petitioner’s execution was stayed pending determination of the constitutionality of the Florida capital-sentencing procedure.17 Following the decision in Proffitt v. Florida, the Court granted certiorari in this case to consider the constitutionality of the trial judge’s use of a confidential presentence report in this capital case.18
Whether a state capital sentencing procedure that permits a trial judge to impose the death sentence on the basis of confidential information which is not disclosed to the defendant or his counsel satisfies the requirements of the Due Process Clause?19
The Due Process Clause of the Fourteenth Amendment requires that a defendant facing a death sentence be provided an opportunity to deny or explain information used by the sentencing judge.20 This is particularly true when that information is contained in a confidential portion of a presentence report not disclosed to defense counsel.21 Death is a qualitatively different punishment from any other that demands heightened reliability in the sentencing process.22
No. The rule requires an opportunity for the defendant to respond to information relied upon to impose death.23 In the established facts the trial judge relied in part on the confidential portion of the presentence investigation report completed on January 28, 1974, without disclosing it to defense counsel and without commenting on its contents, even though the jury had advised a life sentence after finding that mitigating circumstances outweighed aggravating circumstances.24 The judge’s findings recited reliance on the factual information in the presentence investigation yet the confidential portion remained undisclosed, preventing any challenge to its accuracy or relevance.25 This procedure fails to satisfy due process because the interest in reliability when choosing between life and death outweighs any state interest in confidentiality.26
The procedure does not satisfy the requirements of the Due Process Clause.27
Related opinions on this issue
Justice White concurred in the judgment.28 He observed that the issue in this case involves the procedure employed by the State in selecting persons who will receive the death penalty. A procedure for selecting people for the death penalty which permits consideration of secret information relevant to the character and record of the individual offender fails to meet the need for reliability in the determination that death is the appropriate punishment.29
This conclusion stems solely from the Eighth Amendment’s ban on cruel and unusual punishments on which the Woodson decision expressly rested, and his conclusion is limited to cases in which the death penalty is imposed.30
Justice Blackmun concurred in the judgment.31 He did so based on the judgments of the Court in Woodson v. North Carolina and in Roberts v. Louisiana.32 Each of those cases was attained by a plurality opinion of Justices Stewart, Powell, and Stevens, in combination with respective concurrences in the judgment by Justices Brennan and Marshall.33
He therefore concurred in the judgment the Court reaches in the present case.34
Justice Brennan agreed that the Due Process Clause of the Fourteenth Amendment is violated when a defendant facing a death sentence is not informed of the contents of a presentence investigation report made to the sentencing judge.35 However, he adhered to his view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.36 He therefore would vacate the death sentence outright and dissented from the Court’s judgment insofar as it remands for further proceedings that could lead to its imposition.37
Whether the omission by defense counsel to request access to the full presentence report constitutes an effective waiver of any constitutional error in the sentencing record?38
An omission by defense counsel to request access to the full presentence report does not constitute an effective waiver of constitutional error in a capital sentencing record.39 This holds when the State does not urge waiver.40 The state supreme court has a duty to consider the total record.41 Members of that court considered the point.42 There is no basis for presuming a knowing waiver by the defendant.43 Full review is required because the presentence report was the only item considered by the judge but not by the jury.44
No. The rule identifies five specific reasons why counsel’s failure to request the full report is not an effective waiver.45 In the established facts counsel made no request to examine the full report or to be apprised of the confidential portion.46 Yet the State did not urge waiver.47 The Florida Supreme Court has a duty to consider the total record on review of a death sentence.48
Two justices of that court expressly considered the nondisclosure point.49 There is no basis for presuming the defendant made a knowing and intelligent waiver or that counsel made a tactical decision.50 The presentence report was the only item considered by the judge but not by the jury when the judge rejected the jury’s life recommendation.51 These facts preclude finding an effective waiver.52
The omission by defense counsel does not constitute an effective waiver of any constitutional error in the sentencing record.53
Related opinions on this issue
Justice Rehnquist dissented.54 He stated that if capital punishment is not cruel and unusual under the Eighth and Fourteenth Amendments, the use of particular sentencing procedures never previously held unfair under the Due Process Clause cannot convert that sentence into a cruel and unusual punishment.55 The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed.56
He would therefore affirm the judgment of the Supreme Court of Florida.57
Whether the Florida Supreme Court may affirm a death sentence when the record on appeal does not include the confidential portion of the presentence report relied upon by the trial judge?58
A state supreme court may not affirm a death sentence when the record on appeal does not include the confidential portion of the presentence report relied upon by the trial judge.59 The full report must be made part of the record to permit meaningful appellate review that ensures the evenhanded administration of capital sentencing and discloses the considerations motivating the death sentence in every case.60
No. The rule requires that the full presentence report be part of the appellate record to allow review of the considerations motivating the death sentence.61 In the established facts the per curiam opinion of the Florida Supreme Court affirmed the death sentence after reciting the trial judge’s finding and stating that the record had been carefully reviewed.62 Yet the record on appeal did not include the confidential portion of the presentence report.63 Two justices dissented in part because it was unclear whether the court had been provided the confidential portion for review.64
This omission prevents the appellate court from determining what role the confidential information played and violates the requirement of full disclosure for meaningful review.65
The Florida Supreme Court may not affirm a death sentence when the record on appeal does not include the confidential portion of the presentence report relied upon by the trial judge.66
Related opinions on this issue
Justice Marshall dissented.67 He stated that the Florida Supreme Court engaged in precisely the cursory or rubber-stamp review that the joint opinion in Proffitt trusted would not occur.68 The court failed to evaluate the propriety of the death sentence independently.69
It made no comparison with facts in other similar cases.70 It did not consider whether the trial judge was correct in overriding the jury’s recommendation.71 This approach called into question the very basis for this Court’s approval of the Florida system in Proffitt.72