529 U.S. 513 (2000)

CARMELL
v.
TEXAS

No. 98-7540.

United States Supreme Court.

Argued November 30, 1999. Decided May 1, 2000. CERTIORARI TO THE COURT OF APPEALS OF TEXAS, SECOND DISTRICT

*515 *515 Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Rehnquist, C. J., and O'Connor and 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 briefs were Carter G. Phillips, Katherine L. Adams, and Paul A. Hemmersbaugh.

John Cornyn, Attorney General of Texas, argued the cause for 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, Assistant Solicitor General.

Beth S. Brinkmann argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Assistant Attorney *516 General Robinson, Deputy Solicitor General Dreeben, and Vicki S. Marani.^[*]

Justice Stevens, delivered the opinion of the Court.

An amendment to a Texas statute that went into effect on September 1, 1993, authorized conviction of certain sexual offenses on the victim's testimony alone. The previous statute required the victim's testimony plus other corroborating evidence to convict the offender. The question presented is whether that amendment may be applied in a trial for offenses committed before the amendment's effective date without violating the constitutional prohibition against state "ex post facto " laws.

I

In 1996, a Texas grand jury returned a 15-count indictment charging petitioner with various sexual offenses against his stepdaughter. The alleged conduct took place over more than four years, from February 1991 to March 1995, when the victim was 12 to 16 years old. The conduct ceased after the victim told her mother what had happened. Petitioner was convicted on all 15 counts. The two most serious counts charged him with aggravated sexual assault, and petitioner was sentenced to life imprisonment on those two counts. *517 For each of the other 13 offenses (5 counts of sexual assault and 8 counts of indecency with a child), petitioner received concurrent sentences of 20 years.

Until September 1, 1993, the following statute was in effect in Texas:

"A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. The requirement that the victim inform another person of an alleged offense does not apply if the victim was younger than 14 years 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 to petitioner's case.

The first is the so-called "outcry or corroboration" requirement. Under that provision, a victim's testimony can support a conviction for the specified offenses only if (1) that testimony is corroborated by other evidence, or (2) the victim informed another 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 old at the time of the alleged offense, the outcry or corroboration requirement does not apply and the victim's testimony alone can support a conviction—even without any corroborating evidence or outcry. The third feature is that Article 38.07 establishes a sufficiency *518 of the evidence rule respecting the minimum quantum of evidence necessary to sustain a conviction. If the statute's requirements are not met (for example, by introducing only the uncorroborated testimony of a 15-year-old victim who did not make a timely outcry), a defendant cannot be convicted, and the court must enter 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 the words of the statute, "is supportable," and the case may be submitted to the jury and a conviction sustained. See Vickery 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).^[2]

Texas amended Article 38.07, effective September 1, 1993. The amendment extended the child victim exception to victims under 18 years old.^[3] For four of petitioner's counts, *519 that amendment was critical. The "outcry or corroboration" requirement was not satisfied for those convictions;^[4] they rested solely on the victim's testimony. Accordingly, the verdicts on those four counts stand or fall depending on whether the child victim exception applies. Under the old law, the exception would not apply, because the victim was more than 14 years old at the time of the alleged offenses. Under the new law, the exception would apply, because the victim was under 18 years old at that time. In short, the validity of four of petitioner's convictions depends on whether the old or new law applies to his case, which, in turn, depends on whether the Ex Post Facto Clause prohibits the application of the new version of Article 38.07 to his case.

As mentioned, only 4 of petitioner's 15 total convictions are implicated by the amendment to Article 38.07; the other 11 counts—including the 2 convictions for which petitioner received life sentences—are uncontested. Six counts are uncontested because they were committed when the victim was under 14 years old, so his convictions stand even under the old law; the other five uncontested counts were committed after the new Texas law went into effect, so there could be no ex post facto claim as to those convictions. See *520 Weaver v. Graham, 450 U. S. 24, 31 (1981) ("The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date"). What are at stake, then, are the four convictions on counts 7 through 10 for offenses committed between June 1992 and July 1993 when the victim was 14 or 15 years old and the new Texas law was not in effect.

Petitioner appealed his four convictions to the Court of Appeals for the Second District of Texas in Fort Worth. See 963 S. W. 2d 833 (1998). Petitioner argued that under the pre-1993 version of Article 38.07, which was the law in effect at the time of his alleged conduct, those convictions could not stand, because they were based solely on the victim's testimony, and the victim was not under 14 years old at the time of the offenses, nor had she made 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 alone because she was under 18 years old at the time of the offenses. The court held that applying this amendment retrospectively to petitioner's case did not violate the Ex Post Facto Clause:

"The statute as amended does not increase the punishment nor change the elements of the offense that the State must prove. It merely `removes existing restrictions upon the competency of certain classes of persons as witnesses' and is, thus, a rule of procedure. 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 a statute repealing a corroboration requirement has given rise to conflicting decisions,^[5] we granted petitioner's *521 pro se petition for certiorari, 527 U. S. 1002 (1999), and appointed counsel, id., at 1051.

II

To prohibit legislative Acts "contrary to the first principles of the social compact and to every principle of sound legislation,"^[6] the Framers included provisions they considered to be "perhaps greater securities to liberty and republicanism than any [the Constitution] contains."^[7] The provisions declare:

"No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . ." U. S. Const., Art. I, § 10.^[8]

The proscription against ex post facto laws "necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing." Calder v. Bull, 3 Dall. 386, 390 (1798) (Chase, J.). In Calder v. Bull, Justice Chase stated that the necessary explanation is derived from English common law well known to the Framers: "The expressions `ex post facto laws, ` are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. " Id., at 391; see also id., at 389 ("The prohibition . . . very probably arose from the knowledge, that the Parliament of Great Britain claimed and exercised a power to pass such laws . . ."); id., at 396 (Paterson, J.). Specifically, the *522 phrase "ex post facto" referred only to certain types of criminal laws. Justice Chase cataloged those types as follows:

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. " Id., at 390 (emphasis in original).^[9]

It is the fourth category that is at issue in petitioner's case.

The common-law understanding explained by Justice Chase drew heavily upon the authoritative exposition of one of the great scholars of the common law, Richard Wooddeson. See id., at 391 (noting reliance on Wooddeson's treatise).^[10]*523 Wooddeson's classification divided ex post facto laws into three general categories: those respecting the crimes themselves; those respecting the legal rules of evidence; and those affecting punishment (which he further subdivided into laws creating a punishment and those making an existing punishment more severe).^[11] See 2 R. Wooddeson, A Systematical View of the Laws of England 625-640 (1792) (Lecture 41) (hereinafter Wooddeson). Those three categories (the last of which was further subdivided) correlate precisely to Calder `s four categories. Justice Chase also used language in describing the categories that corresponds directly to Wooddeson's phrasing.^[12] Finally, in four *524 footnotes in Justice Chase's opinion, he listed examples of various Acts of Parliament illustrating each of the four categories. See 3 Dall., at 389, nn. *, †, ‡, .^[13] Each of these examples is exactly the same as the ones [bardbl]Wooddeson himself used in his 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's formulation, were, in turn, soon embraced by contemporary scholars. Joseph Story, for example, in writing on the Ex Post Facto Clause, stated:

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

James Kent concurred in this understanding of the Clause:

"[T]he words ex post facto laws were technical expressions, and meant every law that made an act done before the passing of the law, and which was innocent when done, criminal; or which aggravated a crime, and *525 made it greater than it was when committed; or which changed the punishment, and inflicted a greater punishment than the law annexed to the crime when committed; or which altered the legal rules of evidence, and received less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender." 1 Commentaries on American Law 408 (3d ed. 1836) (Lecture 19).

This Court, moreover, has repeatedly endorsed this understanding, including, in particular, the fourth category (sometimes quoting Chase's words verbatim, sometimes simply paraphrasing). 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); Ex parte 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 following Calder, 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).^[14]

*526 III

As mentioned earlier, Justice Chase and Wooddeson both cited several examples of ex post facto laws, and, in particular, cited the case of Sir John Fenwick as an example of the fourth category. To better understand the type of law that falls within that category, then, we turn to Fenwick's case for preliminary guidance.

Those who remained loyal to James II after he was deposed by King William III in the Revolution of 1688 thought their opportunity for restoration had arrived in 1695, following the death of Queen Mary. 9 T. Macaulay, History of England 31 (1899) (hereinafter Macaulay). Sir John Fenwick, along with other Jacobite plotters including George Porter and Cardell Goodman, began concocting their scheme in the spring of that year, and over the next several months the original circle of conspirators expanded in number. Id., at 32, 47-48, 109-110. Before the conspirators could carry out their machinations, however, three members of the group disclosed the plot to William. Id., at 122-125. One by one, the participants were arrested, tried, and convicted of treason. Id., at 127-142. Fenwick, though, remained in hiding while the rest of the cabal was brought to justice. During that time, the trials of his accomplices revealed that there were only two witnesses among them who could prove Fenwick's guilt, Porter and Goodman. Id., at 170— 171. As luck would have it, an act of Parliament proclaimed that two witnesses were necessary to convict a person of high treason. See An Act for Regulateing of Tryals in *527 Cases of Treason and Misprision of Treason, 7 & 8 Will. III, ch. 3, § 2 (1695-1696), in 7 Statutes of the Realm 6 (reprint 1963).^[15] Thus, Fenwick knew that if he could induce either Porter or Goodman to abscond, the case against him would vanish. 9 Macaulay 171.

Fenwick first tried his hand with Porter. Fenwick sent his agent to attempt a bribe, which Porter initially accepted in exchange for leaving for France. But then Porter simply pocketed the bribe, turned in Fenwick's agent (who was promptly tried, convicted, and pilloried), and proceeded to testify against Fenwick (along with Goodman) before a grand jury. Id., at 171-173. When the grand jury returned an indictment for high treason, Fenwick attempted to flee the country himself, but was apprehended and brought before the Lord Justices in London. Sensing an impending conviction, Fenwick threw himself on the mercy of the court and offered to disclose all he knew of the Jacobite plotting, aware all the while that the judges would soon leave the city for their circuits, 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 rather than betray true Jacobites, he concocted a confession calculated to accuse those loyal to William, hoping to introduce embarrassment and perhaps a measure of instability to the current regime. Id., at 175-178. William, however, at once perceived Fenwick's design and rejected the confession, along with any expectation of mercy. Id., at 178— *528 180, 194. Though his contrived ploy for leniency was unsuccessful 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., at 194-195.^[16]

Without a second witness, Fenwick could not be convicted of high treason under the statute mentioned earlier. For all his plotting, however, Fenwick was not to escape. After Goodman's absence was discovered, the House of Commons met and introduced a bill of attainder against Fenwick to correct the situation produced by the combination of bribery and the two-witness law. Id., at 198-199. A lengthy debate ensued, during which the Members repeatedly discussed whether the two-witness rule should apply.^[17] Ultimately, 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 that Fenwick was being attainted "upon less Evidence" than *529 would be required under the two-witness law,^[18] and despite the repeated importuning against the passing of an ex post facto law.^[19] The bill then was taken up and passed by the *530 House of Lords, and the King gave his assent. Id., at 214— 225; see also An Act to Attaint Sir John Fenwick Baronet of High Treason, 8 Will. III, ch. 4 (1696). On January 28, 1697, Sir John Fenwick was beheaded. 9 Macaulay 226-227.

IV

Article 38.07 is unquestionably a law "that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Under the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence. The amended law, however, changed the quantum of evidence necessary to sustain a conviction; under the new law, petitioner could be (and was) convicted on the victim's testimony alone, without any corroborating evidence. Under any commonsense understanding of Calder `s fourth category, Article 38.07 plainly fits. Requiring only the victim's testimony to convict, rather than the victim's testimony plus other corroborating evidence is surely "less testimony required to convict" in any straightforward sense of those words.

Indeed, the circumstances of petitioner's case parallel those of Fenwick's case 300 years earlier. Just as the relevant law in Fenwick's case required more than one witness' testimony to support a conviction (namely, the testimony of a second witness), Texas' old version of Article 38.07 required more than the victim's testimony alone to sustain a conviction (namely, other corroborating evidence).^[20] And just like Fenwick's *531 bill of attainder, which permitted the House of Commons to convict him with less evidence than was otherwise required, Texas' retrospective application of the amendment to Article 38.07 permitted petitioner to be convicted with less than the previously required quantum of evidence. It is true, of course, as the Texas Court of Appeals observed, that "[t]he statute as amended does not increase the punishment nor change the elements of the offense that the State must prove." 963 S. W. 2d, at 836. But that observation simply demonstrates that the amendment does not fit within Calder `s first and third categories. Likewise, the dissent's remark that "Article 38.07 does not establish an element of the offense," post, at 559, only reveals that the law does not come within Calder `s first category. The fact that the amendment authorizes a conviction on less evidence than previously required, however, brings it squarely within the fourth category.

V

The fourth category, so understood, resonates harmoniously with one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice.^[21]

*532 Justice 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," 1 Commentaries on the Laws of England 46 (1765), as did every state constitution with a similar clause, see n. 25, infra. As Justice Washington explained in characterizing "[t]he injustice and tyranny" of ex post facto laws:

"Why did the authors of the constitution turn their attention to this subject, which, at the first blush, would appear to be peculiarly fit to be left to the discretion of those who have the police and good government of the State under their management and control? The only answer to be given is, because laws of this character are oppressive, unjust, and tyrannical; and, as such, are condemned by the universal sentence of civilized man." Ogden v. Saunders, 12 Wheat. 213, 266 (1827). In short, the Ex Post Facto Clause was designed as "an additional bulwark in favour of the personal security of the subject," Calder, 3 Dall., at 390 (Chase, J.), to protect against "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 detestable purposes," Calder, 3 Dall., at 396 (Paterson, J.).

Calder `s fourth category addresses this concern precisely. A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof (see infra, at 540-544). In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. Reducing the quantum of evidence necessary *533 to meet the burden of proof is simply another way of achieving the same end.^[22] All of these legislative changes, in a sense, are mirror images of one another. In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.^[23]

Indeed, Fenwick's case is itself an illustration of this principle. Fenwick could claim no credible reliance interest in the two-witness statute, as he could not possibly have known that only two of his fellow conspirators would be able to testify as to his guilt, nor that he would be successful in bribing one of them to leave the country. Nevertheless, Parliament had enacted the two-witness law, and there was *534 a profound unfairness in Parliament's retrospectively altering the very rules it had established, simply because those rules prevented the conviction of the traitor—notwithstanding the fact that Fenwick could not truly claim to be "innocent." (At least one historian has concluded that his guilt was clearly established, see 9 Macaulay 203-204, and the debate in the House of Commons bears out that conclusion, see, e. g., Proceedings 219, 230, 246, 265, 289.) Moreover, the pertinent rule altered in Fenwick's case went directly to the general issue of guilt, lowering the minimum quantum of evidence required to obtain a conviction. The Framers, quite clearly, viewed such maneuvers as grossly unfair, and adopted the Ex Post Facto Clause accordingly.^[24]

VI

The United States as amicus asks us to revisit the accuracy of the fourth category as an original matter. None of its reasons for abandoning the category is persuasive.

*535 First, pointing to Blackstone's Commentaries and a handful of state constitutions cited by Justice Chase in Calder, see 3 Dall., at 391-392, the United States asserts that Justice Chase simply got it wrong with his four categories. Blackstone wrote: "There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it . . . ." 1 Commentaries on the Laws of England, at 46 (emphasis in original). The ex post facto clauses in Ratification-era state constitutions to which Justice Chase cited are of a piece.^[25] The United States directs our attention to the fact that none of these definitions mentions Justice Chase's fourth category.

All of these sources, though, are perfectly consistent with Justice Chase's first category of ex post facto laws. None of them is incompatible with his four-category formulation, unless we accept the premise that Blackstone and the state constitutions purported to express the exclusive definition of an ex post facto law. Yet none appears to do so on its face. And if those definitions were read as exclusive, the United *536 States' argument would run up against a more troubling obstacle, namely, that neither Blackstone nor the state constitutions mention Calder `s third category either (increases in punishment). The United States, in effect, asks us to abandon two of Calder `s categories based on the unsupported supposition that the Blackstonian and state constitutional definitions were exclusive, 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 of the request demonstrates why it must be rejected.^[26]

Next, the United States contends Justice Chase was mistaken to cite the case of Sir John Fenwick as an example of an ex post facto law, because it was actually a bill of attainder. Fenwick was indeed convicted by a bill of attainder, but it does not follow that his case cannot also be an example of an ex post facto law. Clearly, Wooddeson thought it was, see 2 Wooddeson 641, as did the House of Commons, see n. 19, supra, and we are aware of no rule stating that a single historical event can explain one, but not two, constitutional Clauses (actually, three Clauses, see Art. III, § 3 (Treason Clause)). We think the United States' observation simply underscores the kinship between bills of attainder and ex post facto laws, see Nixon v. Administrator of General 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 Human Rights in the Constitution of 1787, pp. 92-93 (1956) (hereinafter *537 Chafee), which may explain why the Framers twice placed their respective prohibitions adjacent to one another. And if the United States means to argue that category four should be abandoned because its illustrative example was a bill of attainder, this would prove entirely too much, because all of the specific examples listed by Justice Chase were passed as bills of attainder.^[27]

Finally, both Texas and the United States argue that we have already effectively cast out the fourth category in Collins v. Youngblood, 497 U. S. 37 (1990). Collins held no such thing. That case began its discussion of the Ex Post Facto Clause by quoting verbatim Justice Chase's "now familiar opinion in Calder " and his four-category definition. Id., at 41-42. After noting that "[e]arly opinions of the Court portrayed this as an exclusive definition of ex post facto laws," id., at 42, the Court 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 that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post *538 facto. `"Collins, 497 U. S., at 42 (quoting Beazell, 269 U. S., at 169-170).

Collins then observed in a footnote: "The Beazell definition omits the reference by Justice Chase in Calder v. Bull, to alterations in the `legal rules of evidence.' As cases subsequent to Calder make clear, this language was not intended to prohibit the application of new evidentiary rules in trials for crimes committed before the changes." 497 U. S., at 43, n. 3 (citations omitted). Collins then commented that "[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause." Id., at 43.

It seems most accurate to say that Collins is rather cryptic. While calling Calder `s four categories the "exclusive definition" of ex post facto laws, it also calls Beazell `s definition a "faithful" rendition of the "original understanding" of the Clause, even though that quotation omitted category four. And while Collins quotes a portion of Beazell omitting the fourth category, the immediately preceding paragraph in Beazell explains that the law at issue in that case did not change "[t]he quantum and kind of proof required to establish guilt," 269 U. S., at 170, a statement distinguishing, rather than overruling, Calder `s fourth category.

If Collins had intended to resurrect a long forgotten original understanding of the Ex Post Facto Clause shorn of the fourth category, we think it strange that it would have done so in a footnote. Stranger still would be its reliance on a single case from 1925, which did not even implicate, let alone purport to overrule, the fourth category, and which did not even mention Fenwick's case. But this Court does not discard longstanding precedent in this manner. Further still, Collins itself expressly overruled two of our prior cases; if the Court that day were intent on overruling part of Calder as well, it surely would have said so directly, rather than act in such an ambiguous manner.

*539 The better understanding of Collins' discussion of the Ex Post Facto Clause is that it eliminated a doctrinal hitch that had developed in our cases, which purported to define the scope of the Clause along an axis distinguishing between laws involving "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)—the two cases Collins overruled—relied on just that distinction. In overruling them, the Court correctly pointed out, "the prohibition which may not be evaded is the one defined by the Calder categories." 497 U. S., at 46. Accordingly, Collins held that it was a mistake to stray beyond Calder `s four categories, not that the fourth category was itself mistaken.^[28]

VII

Texas next argues that even if the fourth category exists, it is limited 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 of two pieces of evidence. The first is our decision in Cummings v. Missouri, 4 Wall. 277 (1867). The second concerns Texas' historical understanding of Fenwick's case.

*540 Cummings v. Missouri addressed an ex post facto challenge to certain amendments to the Missouri State Constitution made in 1865. When read together, those amendments listed a series of acts deemed criminal (all dealing with the giving of aid or comfort to anyone engaged in armed hostility against the United States), and then declared that unless a person engaged in certain professions (e. g., lawyers and clergymen) swore an oath of loyalty, he "shall, on conviction [for failing to swear the oath], be punished" by a fine, imprisonment, or both. Id., at 279-281. We held that these provisions violated the Ex Post Facto Clause.

Writing for the Court, Justice Field first observed that "[b]y an ex post facto law is meant one which imposes a