392
Breyer, J., dissenting
habeas proceeding, see Order of Kansas Supreme Court, No. 94-73039, Mar. 1, 1996. The proceeding is thus not part of the record, and cannot properly be considered by this Court. And the Kansas Supreme Court obviously had no chance to consider Kansas' new claim made at oral argument before this Court. There is simply no evidence in the record before this Court that comes even close to resembling the assertion Kansas made at oral argument. It is the record, not the parties' view of it, that must control our decision. See Russell v. Southard, 12 How. 139, 158-159 (1851); Adickes v. S. H. Kress & Co., 398 U. S. 144, 157-158, n. 16 (1970); Hopt v. Utah, 114 U. S. 488, 491-492 (1885); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 489, n. 3 (1986); New Haven Inclusion Cases, 399 U. S. 392, 450, n. 66 (1970); R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 555-556, 594 (7th ed. 1993); Fed. Rule Evid. 201(b).
The prohibition on facts found outside the record is designed to ensure the reliability of the evidence before the Court. For purposes of my argument in this dissent, however, the material that the majority wishes to consider, when read in its entirety, shows that Kansas was not providing treatment to Hendricks. At best, the testimony at the state hearing contained general and vague references that treatment was about to be provided, but it contains no statement that Hendricks himself was receiving treatment. And it provides the majority with no support at all in respect to that key fact. Indeed, it demonstrates the contrary conclusion. For example, the program's director, Dr. Befort, testified that he would have to tell the court at Hendricks' next annual review, in October 1995, that Hendricks "has had no opportunity for meaningful treatment." App. 400. He also stated that SVP's were receiving "essentially no treatment" and that the program does not "have adequate staffing." Id., at 393, 394. And Dr. Befort's last words made clear that Hendricks has "wasted ten months . . . in terms of treatment
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