Kelly v. South Carolina, 534 U.S. 246, 9 (2002)

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Opinion of the Court

whether locked up or free, and whether free as a fugitive or as a parolee.3

The fallacy of the State Supreme Court's attempt to portray the thrust of the evidence as so unrealistically limited harks back to a comparable mistake by the trial judge, who spoke of the evidence as going, not to future dangerousness, but "to [Kelly's] character and characteristics." App. 249. The error in trying to distinguish Simmons this way lies in failing to recognize that evidence of dangerous "character" may show "characteristic" future dangerousness, as it did here. This, indeed, is the fault of the State's more general argument before us, that evidence of future dangerousness counts under Simmons only when the State "introduc[es] evidence for which there is no other possible inference but future dangerousness to society." Brief for Respondent 27 (emphasis in original). Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.4

3 The Chief Justice's dissent correctly notes that a required instruction on parole eligibility does not bar a prosecutor from arguing dangerousness in prison as a ground for choosing the death penalty. See post, at 261. The plurality acknowledged this possibility in Simmons v. South Carolina, 512 U. S. 154, 165, n. 5 (1994) ("[T]he fact that a defendant is parole ineligible does not prevent the State from arguing that the defendant poses a future danger"); see also id., at 177 (O'Connor, J., concurring in judgment) (when the defendant "bring[s] his parole ineligibility to the jury's attention" "the prosecution is free to argue that the defendant would be dangerous in prison"). But the plurality also recognized that even if a "State [were] free to argue that the defendant will pose a danger to others in prison," id., at 165, n. 5, the State was not free to "mislead the jury by concealing accurate information about the defendant's parole ineligibility," ibid.

4 As The Chief Justice says, see post, at 261 (dissenting opinion), it may well be that the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future. See Simmons, supra, at 163 (plurality opinion) (noting that "prosecutors in South Carolina, like those in other States that impose the death penalty,

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