572
Ginsburg, J., dissenting
Calder's fourth category," ante, at 530, one that comports with our precedents and with the underlying purposes of the Ex Post Facto Clause: Laws that reduce the burden of persuasion the prosecution must satisfy to win a conviction may not be applied to offenses committed before their enactment. To be sure, this reading would leave the fourth category with considerably less independent effect than it would have had in Justice Chase's day, given our intervening decisions establishing the "beyond a reasonable doubt" standard as a constitutional minimum under the Due Process Clause. See, e. g., In re Winship, 397 U. S. 358 (1970); Jackson v. Virginia, 443 U. S. 307 (1979). But it is not a reading that necessarily renders the category meaningless even today. Imagine, for example, a statute requiring the prosecution to prove a particular sentencing enhancement factor—leadership role in the offense, say, or obstruction of justice—beyond a reasonable doubt. A new statute providing that the factor could be established by a mere preponderance of the evidence might rank as ex post facto if applied to offenses committed before its enactment. The same might be said of a statute retroactively increasing the defendant's burden of persuasion as to an affirmative defense.
Burdens of persuasion are qualitative tests of sufficiency. Calder's fourth category, however, encompasses quantitative sufficiency rules as well, for Justice Chase did speak of a law that "receives less . . . testimony, than the law required at the time of the commission of the offence." 3 Dall., at 390 (emphasis added). Cf. Hopt, 110 U. S., at 590 ("Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed" might be ex post facto. (emphasis added)). Quantitative sufficiency rules are rare in modern Anglo-American law, but some do exist. Criminal statutes sometimes limit the prosecution to a particular form of proof, for example, the testimony of two witnesses to the same overt act. In modern Anglo-
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