Cite as: 507 U. S. 272 (1993)
Stevens, J., dissenting
was flatly contrary to state law." Lashley v. Armon-trout, 957 F. 2d 1495, 1500, n. 1 (CA8 1992).6
This erroneous ruling by the trial judge unquestionably explains why the record contains no specific testimony about respondent's prior criminal history. Even though due process may not automatically entitle a defendant to an instruction that he is presumed innocent of other offenses at the penalty phase of the trial, under Whorton, supra, the instruction should certainly be given when a trial court error is responsible for the absence of evidence supporting the instruction.
The failure to instruct the jury on the presumption of innocence at the guilt phase of respondent's trial—whether or not respondent had presented any evidence of his innocence—would have been constitutional error requiring reversal of his conviction. Under our holding in Lockett v. Ohio, 438 U. S. 586 (1978), the comparable refusal in this case was also constitutional error requiring the vacation of respondent's death sentence.7 The Court of Appeals, therefore, properly set aside a sentence of death imposed by a
6 The other two members of the panel did not agree with Chief Judge Arnold's opinion that this error constituted "a separate and distinct violation of the principle of Lockett v. Ohio, 438 U. S. 586 . . . (1978)," 957 F. 2d, at 1500-1501, n. 1, but they did not question his interpretation of state law.
7 We have made it clear that procedural safeguards constitutionally required at the guilt stage of a capital trial are also required at the penalty stage. Gardner v. Florida, 430 U. S. 349, 358 (1977) (plurality opinion) ("[I]t is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause"); Estelle v. Smith, 451 U. S. 454 (1981) (Fifth Amendment privilege against self-incrimination applies at capital sentencing); Bullington v. Missouri, 451 U. S. 430 (1981) (Double Jeopardy Clause applies at capital sentencing). In Bullington we actually considered the same Missouri statutes that regulated this respondent's capital sentencing, and held that "[b]y enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, however, Missouri explicitly requires the jury to determine whether the prosecution has 'proved its case.' " Id., at 444 (emphasis in original).
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