Griffin v. United States (502 U.S. 46)/Concurrence Blackmun

Justice BLACKMUN, concurring in the judgment.

I agree with the Court that petitioner has not made out a violation of the Due Process Clause, although I do not follow the Court on its self-guided tour of the common law. See ante, at 49-52. It is enough, I think, to observe that petitioner has not presented any sustained constitutional argument whatsoever.

I agree further with the Court's conclusion that Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), does not require reversal in this case, and that petitioner has not sufficiently distinguished Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). See ante, at 56-59. I would emphasize more strongly than does the Court, however, the danger of jury confusion that was inherent in this multiple-defendant, 23-count indictment and the resulting 5- to 6-week trial.

The Court rightly observes that "it would generally be preferable" for the trial court to remove unsupported theories from the jury's consideration. See ante, at 60. I would also note that the Government had two other means of avoiding the possibility, however remote, that petitioner was convicted on a theory for which there was insufficient evidence: The Government either could have charged the two objectives in separate counts, or agreed to petitioner's request for special interrogatories. The Court wisely rejects, albeit silently, the Government's argument that these practices, but not the complex and voluminous proof, would likely have confused the jury. I would go further than the Court and commend these techniques to the Government for use in complex conspiracy prosecutions.