Cite as: 507 U. S. 272 (1993)
Stevens, J., dissenting
spondent's death sentence without hearing argument on the merits of the novel and important constitutional question that the case presents. That question is whether the presumption of innocence (uncontradicted in any way by the prosecution) supports an instruction to the jury at sentencing that the capital defendant's lack of a significant criminal history is a factor mitigating against its imposition of the death penalty. The Court acknowledges that the defendant's testimonial assertion of innocence would support the instruction, see ante, at 277; it fails to recognize that the presumption of innocence does so as well.
The question arises because the record on which the jury relied in imposing the death sentence contains no evidence of any criminal activity by respondent except the serious felony for which he has been convicted and sentenced. Speculation by appellate judges, see ante, at 273-274, about a matter that was neither available to the sentencing authority nor mentioned by the State in its petition in this Court is not a substitute for admissible evidence presented in an adversary proceeding.2 Speculation about his juvenile record is impermissible; state law prohibits any use of such evidence in adult
2 Although the majority is willing to rely on these unfounded remarks, see ante, at 273-274, the State itself did not present any such evidence at respondent's trial or sentencing, and it has not suggested to us (or to any lower court) that respondent actually committed a single criminal act between his 17th birthday and the murder of his cousin.
As the Court notes, ante, at 274, n., respondent argued both that this statement was "[ir]relevant," and that "to admit the statements or written confessions into evidence would be extremely prejudicial . . . ." Motion in Limine, Record 143 (Jan. 21, 1982). Respondent was correct, of course, about the improper prejudice that would have resulted from admitting statements about alleged crimes with which he was never charged and on which the State has never relied in arguing that the instruction in question was properly withheld. It is unfortunate that respondent was spared such prejudice in the trial court only to have it reapplied (under the Court's reading of a stray comment in the record) here.
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