OCTOBER TERM, 1992
Syllabus
BRECHTv. ABRAHAMSON,SUPERINTENDEN~ DODGE CORRECTIONAL
INSTITUTION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 91-7358. Argued December 1, 1992-Decided April 21, 1993
At his first-degree murder trial in Wisconsin state court,
petitioner Brecht admitted shooting the victim, but claimed it was
an accident. In order to impeach this testimony, the State,
inter alia, made several references to the fact that, before
he was given his
Miranda warnings at an arraignment, Brecht
failed to tell anyone with whom he came in contact that the
shooting was accidental. The State also made several references to
his
post-Miranda-warning silence in this regard. The jury
returned a guilty verdict and Brecht was sentenced to life in
prison, but the State Court of Appeals set the conviction aside on
the grounds that the State's references to his
post-Miranda
silence violated due process under
Doyle v.
Ohio,
426 U. S. 610,
and this error was sufficiently "prejudicial" to require reversal.
The State Supreme Court reinstated the conviction, holding that the
error was "'harmless beyond a reasonable doubt'" under the standard
set forth in
Chapman v.
California, 386 U. S. 18, 24.
The Federal District Court disagreed and set aside the conviction
on habeas review. In reversing, the Court of Appeals held that the
proper standard of harmless-error review was that set forth in
Kotteakos v.
United States, 328 U. S. 750, 776, i.
e., whether the
Doyle violation" 'had substantial and
injurious effect or influence in determining the jury's verdict.'''
Applying this standard, the court concluded that Brecht was not
entitled to relief.
Held:
1. The
Kotteakos harmless-error standard, rather than the
Chapman standard, applies in determining whether habeas
relief must be granted because of unconstitutional "trial error"
such as the
Doyle error at issue. Pp. 627-638.
(a) The State's references to Brecht's
post-Miranda
silence violated
Doyle. The
Doyle rule rests on the
Miranda warnings' implicit assurance that a suspect's
silence will not be used against him, and on the fundamental
unfairness of using postwarning silence to impeach an explanation
subsequently offered at trial. It is conceivable that, once Brecht
was given his warnings, he decided to stand on his right to remain
silent because he believed his silence would not be used against
him at trial. The prosecution's references to his
pre-Miranda silence
620
Syllabus
were, however, entirely proper. Such silence is probative and
does not rest on any implied assurance by law enforcement
authorities that it will carry no penalty. Pp. 627-629.
(b)
Doyle error fits squarely into the category of
constitutional violations characterized by this Court as "trial
error." See
Arizona v.
Fulminante, 499 U. S. 279, 307. Such
error occurs during the presentation of the case to the jury, and
is amenable to harmless-error analysis because it may be
quantitatively assessed in the context of other evidence to
determine its effect on the trial. See id., at 307-308. This Court
has consistently applied the
Chapman standard in reviewing
claims of constitutional error of the trial type on direct review
of state and federal criminal proceedings. Pp. 629-630.
(c) It is for the Court to determine what harmless-error
standard applies on collateral review of Brecht's
Doyle
claim. Although the Court has applied the
Chapman standard
in a handful of federal habeas cases,
stare decisis does not
preclude adoption of the
Kotteakos standard here, since the
decisions in question never squarely addressed, but merely assumed,
Chapman's applicability on collateral review. Nor has
Congress provided express guidance on the question. The federal
habeas statute is silent as to the applicable standard, and while
the federal harmless-error statute appears to echo the
Kotteakos standard, it has been limited in its application
to claims of nonconstitutional error in federal criminal cases. In
line with the traditional rule, the Court finds no reason to draw
inferences from Congress' failure to enact post
Chapman
proposals that would have provided a less stringent harmlesserror
standard on collateral review of constitutional error. Pp.
630-633.
(d) The
Kotteakos standard is better tailored to the
nature and purpose of collateral review than the
Chapman
standard, and is more likely to promote the considerations
underlying this Court's recent habeas jurisprudence. In recognition
of the historical distinction between direct review as the
principal way to challenge a conviction and collateral review as an
extraordinary remedy whose role is secondary and limited, the Court
has often applied different standards on habeas than on direct
review. It scarcely seems logical to require federal habeas courts
to engage in the same approach that
Chapman requires of
state courts on direct review, since the latter courts are fully
qualified to identify constitutional error and are often better
situated to evaluate its prejudicial effect on the trial process.
Absent affirmative evidence that statecourt judges are ignoring
their oath, Brecht's argument is unpersuasive that such courts will
respond to the application of
Kotteakos on federal habeas by
violating their Article VI duty to uphold the Constitution. In any
event, the additional deterrent effect, if any, of applying
Chapman on federal habeas is outweighed by the costs of that
application,
621
which undermines the States' interest in finality and infringes
upon their sovereignty over criminal matters; is at odds with
habeas' purpose of affording relief only to those grievously
wronged; imposes significant "social costs," including the
expenditure of additional time and resources by all of the parties,
the erosion of memory and the dispersion of witnesses, and the
frustration of society's interest in the prompt administration of
justice; and results in retrials that take place much later than
those following reversal on direct appeal. This imbalance of costs
and benefits counsels in favor of application of the less onerous
Kotteakos standard on collateral review, under which
claimants are entitled to relief for trial error only if they can
establish that "actual prejudice" resulted. See
United
States v.
Lane, 474 U. S. 438, 449.
Because the
Kotteakos standard is grounded in the federal
harmless-error rule (28 U. S. C. § 2111), federal courts may turn
to an existing body of case law and, thus, are unlikely to be
confused in applying it. pp. 633-638.
2. It is clear that the
Doyle error at Brecht's trial did
not "substantially influence" the jury's verdict within the meaning
of
Kotteakos, since the record, considered as a whole,
demonstrates that the State's references to Brecht's
post-Miranda silence were infrequent and were, in effect,
merely cumulative of the extensive and permissible references to
his
pre-Miranda silence; that the evidence of his guilt was,
if not overwhelming, certainly weighty; and that circumstantial
evidence also pointed to his guilt. Thus, Brecht is not entitled to
habeas relief. Pp.638-639.
944 F.2d
1363, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
STEVENS, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J.,
filed a concurring opinion,
post, p. 639. WHITE, J., filed a
dissenting opinion, in which BLACKMUN, J., joined, and in which
SOUTER, J., joined except for the footnote and Part III,
post, p. 644. BLACKMUN,
post, p. 650, O'CONNOR,
post, p. 650, and SOUTER, JJ.,
post, p. 657, filed
dissenting opinions.
Allen E. Shoen berger, by appointment of the Court, 505
U. S. 1202, argued the cause and filed briefs for petitioner.
Sally L. Wellman, Assistant Attorney General of
Wisconsin, argued the cause for respondent. With her on the brief
was
James E. Doyle, Attorney General.
Attorney General Barr argued the cause for the United States as
amicus curiae urging affirmance. On the brief were Solicitor
General Starr, Assistant Attorney General
622
Mueller, Deputy Solicitor General Roberts, Ronald J. Mann, and
Vicki S. Marani. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In
Chapman v.
California, 386 U. S. 18, 24 (1967),
we held that the standard for determining whether a conviction must
be set aside because of federal constitutional error is whether the
error "was harmless beyond a reasonable doubt." In this case we
must decide whether the
Chapman harmless-error standard
applies in determining whether the
*Steven R. Shapiro, John A. Powell, Leon Friedman, and
Larry W Yackle filed a brief for the American Civil
Liberties Union et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Daniel E. Lungren,
Attorney General of California,
George Williamson, Chief
Assistant Attorney General,
Dane R. Gillette, Deputy
Attorney General, and
Mark L. Krotoski, Special Assistant
Attorney General,
James H. Evans, Attorney General of
Alabama,
Charles E. Cole, Attorney General of Alaska,
Winston Bryant, Attorney General of Arkansas,
Gale A.
Norton, Attorney General of Colorado,
Richard N. Palmer,
Chief State's Attorney of Connecticut,
Larry EchoHawk,
Attorney General of Idaho,
Linley E. Pearson, Attorney
General of Indiana,
Robert T. Stephan, Attorney General of
Kansas,
Chris Gorman, Attorney General of Kentucky,
Richard P. Ieyoub, Attorney General of Louisiana,
Frank J.
Kelley, Attorney General of Michigan,
Michael C.
Moore, Attorney General of Mississippi,
William L. Webster, Attorney General of Missouri,
Marc
Racicot, Attorney General of Montana,
Don Stenberg,
Attorney General of Nebraska,
Frankie Sue Del Papa, Attorney
General of Nevada,
Robert J.
Del Tufo, Attorney
General of New Jersey,
Lee Fisher, Attorney General of Ohio,
Ernest D. Preate, Jr., Attorney General of Pennsylvania,
T. Travis Medlock, Attorney General of South Carolina,
Mark Barnett, Attorney General of South Dakota,
Dan
Morales, Attorney General of Texas,
Paul Van Dam,
Attorney General of Utah,
Jeffrey L. Amestoy, Attorney
General of Vermont,
Kenneth O.
Eikenberry, Attorney
General of Washington,
Mario J.
Palumbo, Attorney
General of West Virginia, and
Joseph B. Meyer, Attorney
General of Wyoming; for the County of Wayne, Michigan, by
John
D. O'Hair and
Timothy A. Baughman; and for the Criminal
Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
623
prosecution's use for impeachment purposes of petitioner's
post-Miranda1 silence, in violation of due process under
Doyle v.
Ohio, 426 U. S. 610 (1976),
entitles petitioner to habeas corpus relief. We hold that it does
not. Instead, the standard for determining whether habeas relief
must be granted is whether the
Doyle error "had substantial
and injurious effect or influence in determining the jury's
verdict."
Kotteakos v.
United States, 328 U. S. 750, 776
(1946). The
Kotteakos harmless-error standard is better
tailored to the nature and purpose of collateral review than the
Chapman standard, and application of a less onerous
harmless-error standard on habeas promotes the considerations
underlying our habeas jurisprudence. Applying this standard, we
conclude that petitioner is not entitled to habeas relief.
Petitioner Todd A. Brecht was serving time in a Georgia prison
for felony theft when his sister and her husband, Molly and Roger
Hartman, paid the restitution for petitioner's crime and assumed
temporary custody of him. The Hartmans brought petitioner home with
them to Alma, Wisconsin, where he was to reside with them before
entering a halfway house. This caused some tension in the Hartman
household because Roger Hartman, a local district attorney,
disapproved of petitioner's heavy drinking habits and homosexual
orientation, not to mention his previous criminal exploits. To make
the best of the situation, though, the Hartmans told petitioner, on
more than one occasion, that he was not to drink alcohol or engage
in homosexual activities in their home. Just one week after his
arrival, however, petitioner violated this house rule.
While the Hartmans were away, petitioner broke into their liquor
cabinet and began drinking. He then found a rifle in an upstairs
room and began shooting cans in the backyard. When Roger Hartman
returned home from work, petitioner shot him in the back and sped
off in Mrs. Hartman's car.
1
Miranda v.
Arizona, 384 U. S. 436 (1966).
624
Hartman crawled to a neighbor's house to summon help. (The
downstairs phone in the Hartmans' house was inoperable because
petitioner had taken the receiver on the upstairs phone off the
hook.) Help came, but Hartman's wound proved fatal. Meanwhile,
petitioner had driven Mrs. Hartman's car into a ditch in a nearby
town. When a police officer stopped to offer assistance, petitioner
told him that his sister knew about his car mishap and had called a
tow truck. Petitioner then hitched a ride to Winona, Minnesota,
where he was stopped by police. At first he tried to conceal his
identity, but he later identified himself and was arrested. When he
was told that he was being held for the shooting, petitioner
replied that "it was a big mistake" and asked to talk with
"somebody that would understand [him]." App. 39, 78. Petitioner was
returned to Wisconsin, and thereafter was given his Miranda
warnings at an arraignment.
Then petitioner was charged with first-degree murder.
At trial in the Circuit Court for Buffalo County, he took the
stand and admitted shooting Hartman, but claimed it was an
accident. According to petitioner, when he saw Hartman pulling into
the driveway on the evening of the shooting, he ran to replace the
gun in the upstairs room where he had found it. But as he was
running toward the stairs in the downstairs hallway, he tripped,
causing the rifle to discharge the fatal shot. After the shooting,
Hartman disappeared, so petitioner drove off in Mrs. Hartman's car
to find him. Upon spotting Hartman at his neighbor's door, however,
petitioner panicked and drove away.
The State argued that petitioner's account was belied by the
fact that he had failed to get help for Hartman, fled the Hartmans'
home immediately after the shooting, and lied to the police officer
who came upon him in the ditch about having called Mrs. Hartman. In
addition, the State pointed out that petitioner had failed to
mention anything about the shooting being an accident to the
officer who found him in the ditch, the man who gave him a ride to
Winona, or the
625
officers who eventually arrested him. Over the objections of
defense counsel, the State also asked petitioner during
cross-examination whether he had told anyone at any time before
trial that the shooting was an accident, to which petitioner
replied "no," and made several references to petitioner's pretrial
silence during closing argument.2 Finally, the State offered
extrinsic evidence tending to contradict petitioner's story,
including the path the bullet traveled through Mr. Hartman's body
(horizontal to slightly downward) and the location where the rifle
was found after the shooting (outside), as well as evidence of
motive (petitioner's hostility toward Mr. Hartman because of his
disapproval of petitioner's sexual orientation).
The jury returned a guilty verdict, and petitioner was sentenced
to life imprisonment. The Wisconsin Court of
2 The State's cross-examination of petitioner included the
following exchange:
"Q. In fact the first time you have ever told this story is when
you testified here today was it not?
"A. You mean the story of actually what happened? "Q. Yes.
"A. I knew what happened, I'm just telling it the way it
happened, yes, I didn't have a chance to talk to anyone, I didn't
want to call somebody from a phone and give up my rights, so I
didn't want to talk about it, no sir." App. 22-23.
Then on re-cross-examination, the State further inquired:
"Q. Did you tell anyone about what had happened in Alma? "A. No
I did not."
Id., at 23.
During closing argument, the State urged the jury to "remember
that Mr. Brecht never volunteered until in this courtroom what
happened in the Hartman residence .... "
Id., at 30. It also
made the following statement with regard to petitioner's pretrial
silence: "He sits back here and sees all of our evidence go in and
then he comes out with this crazy story .... "
Id., at 31.
Finally, during its closing rebuttal, the State said: "I know what
I'd say [had I been in petitioner's shoes], I'd say, 'hold on, this
was a mistake, this was an accident, let me tell you what
happened,' but he didn't say that did he. No, he waited until he
hears our story."
Id., at 36.
626
Appeals set the conviction aside on the ground that the State's
references to petitioner's
post-Miranda silence, see n. 2,
supra, violated due process under
Doyle v.
Ohio,
426 U. S. 610 (1976), and that this error was sufficiently
"prejudicial" to require reversal.
State v.
Brecht,
138 Wis. 2d 158, 168-169, 405 N. W. 2d 718, 723 (1987). The
Wisconsin Supreme Court reinstated the conviction. Although it
agreed that the State's use of petitioner's
post-Miranda
silence was impermissible, the court determined that this error
"'was harmless beyond a reasonable doubt.'"
State v.
Brecht, 143 Wis. 2d 297, 317, 421 N. W. 2d 96, 104 (1988)
(quoting
Chapman v.
California, 386 U. S. 18, 24 (1967)).
In finding the
Doyle violation harmless, the court noted
that the State's "improper references to Brecht's silence were
infrequent," in that they "comprised less than two pages of a 900
page transcript, or a few minutes in a four day trial in which
twenty-five witnesses testified," and that the State's evidence of
guilt was compelling. 143 Wis. 2d, at 317, 421 N. W. 2d, at
104.
Petitioner then sought a writ of habeas corpus under 28 U. S. C.
§ 2254, reasserting his
Doyle claim. The District Court
agreed that the State's use of petitioner's post
Miranda
silence violated
Doyle, but disagreed with the Wisconsin
Supreme Court that this error was harmless beyond a reasonable
doubt, and set aside the conviction. 759 F. Supp. 500 (WD Wis.
1991). The District Court based its harmless-error determination on
its view that the State's evidence of guilt was not "overwhelming,"
and that the State's references to petitioner's
post-Miranda
silence, though "not extensive," were "crucial" because
petitioner's defense turned on his credibility.
Id., at 508.
The Court of Appeals for the Seventh Circuit reversed. It, too,
concluded that the State's references to petitioner's
post-Miranda silence violated
Doyle, but it disagreed
with both the standard that the District Court had applied in
conducting its harmless-error
627
inquiry and the result it reached.
944 F.2d
1363, 1368, 1375-1376 (1991).
The Court of Appeals held that the
Chapman harmlesserror
standard does not apply in reviewing
Doyle error on federal
habeas. Instead, because of the "prophylactic" nature of the
Doyle rule, 944 F. 2d, at 1370, as well as the costs
attendant to reversing state convictions on collateral review, id.,
at 1373, the Court of Appeals held that the standard for
determining whether petitioner was entitled to habeas relief was
whether the
Doyle violation" 'had substantial and injurious
effect or influence in determining the jury's verdict,'" 944 F. 2d,
at 1375 (quoting
Kotteakos v.
United States, 328 U.
S., at 776). Applying this standard, the Court of Appeals concluded
that petitioner was not entitled to relief because, "given the many
more, and entirely proper, references to [petitioner's] silence
preceding arraignment," he could not contend with a "straight face"
that the State's use of his post
Miranda silence had a
"substantial and injurious effect" on the jury's verdict. 944 F.
2d, at 1376.
We granted certiorari to resolve a conflict between Courts of
Appeals on the question whether the
Chapman harmlesserror
standard applies on collateral review of
Doyle violations,
504 U. S. 972 (1992),3 and now affirm.
We are the sixth court to pass on the question whether the
State's use for impeachment purposes of petitioner's
post
Miranda silence requires reversal of his murder
conviction. Petitioner urges us to even the count, and decide
matters in his favor once and for all. He argues that the
Chapman harmless-error standard applies with equal force on
collateral review of
Doyle error. According to petitioner,
the need to prevent state courts from relaxing their standards on
direct review of
Doyle claims, and the confusion which would
ensue were we to adopt the
Kotteakos harmless-error standard
on
3 Cf.
Bass v.
Nix, 909 F.2d
297 (CAS 1990) (The
Chapman harmlesserror standard
governs in reviewing
Doyle violations on collateral
review).
628
collateral review, require application of the
Chapman
standard here. Before considering these arguments, however, we must
first characterize the nature of
Doyle error itself.
In
Doyle v.
Ohio, 426 U. S., at 619, we held that
"the use for impeachment purposes of [a defendant's] silence, at
the time of arrest and after receiving
Miranda warnings,
violate[s] the Due Process Clause of the Fourteenth Amendment."
This rule "rests on 'the fundamental unfairness of implicitly
assuring a suspect that his silence will not be used against him
and then using his silence to impeach an explanation subsequently
offered at triaL'"
Wainwright v.
Greenfield, 474 U. S. 284, 291 (1986)
(quoting
South Dakota v.
Neville, 459 U. S. 553, 565
(1983)). The "implicit assurance" upon which we have relied in our
Doyle line of cases is the right-to-remain-silent component
of
Miranda. Thus, the Constitution does not prohibit the use
for impeachment purposes of a defendant's silence prior to arrest,
Jenkins v.
Anderson, 447 U. S. 231, 239
(1980), or after arrest if no
Miranda warnings are given,
Fletcher v.
Weir, 455 U. S. 603, 606-607
(1982)
(per curiam). Such silence is probative and does not
rest on any implied assurance by law enforcement authorities that
it will carry no penalty. See 447 U. S., at 239.
This case illustrates the point well. The first time petitioner
claimed that the shooting was an accident was when he took the
stand at trial. It was entirely proper-and probative-for the State
to impeach his testimony by pointing out that petitioner had failed
to tell anyone before the time he received his
Miranda
warnings at his arraignment about the shooting being an accident.
Indeed, if the shooting was an accident, petitioner had every
reason-including to clear his name and preserve evidence supporting
his version of the events-to offer his account immediately
following the shooting. On the other hand, the State's references
to petitioner's silence after that point in time, or more generally
to petitioner's failure to come forward with his version of
629
events at any time before trial, see n. 2,
supra, crossed
the
Doyle line. For it is conceivable that, once petitioner
had been given his
Miranda warnings, he decided to stand on
his right to remain silent because he believed his silence would
not be used against him at trial.
The Court of Appeals characterized
Doyle as "a
prophylactic rule." 944 F. 2d, at 1370. It reasoned that, since the
need for
Doyle stems from the implicit assurance that flows
from
Miranda warnings, and "the warnings required by
Miranda are not themselves part of the Constitution,"
"Doyle is ... a prophylactic rule designed to protect
another prophylactic rule from erosion or misuse."
Ibid. But
Doyle was not simply a further extension of the
Miranda prophylactic rule. Rather, as we have discussed, it
is rooted in fundamental fairness and due process concerns. However
real these concerns,
Doyle does not "'overprotec[tJ''' them.
Duckworth v.
Eagan, 492 U. S. 195, 209 (1989)
(O'CONNOR, J., concurring). Under the rationale of
Doyle,
due process is violated whenever the prosecution uses for
impeachment purposes a defendant's
post-Miranda silence.
Doyle thus does not bear the hallmarks of a prophylactic
rule.
Instead, we think
Doyle error fits squarely into the
category of constitutional violations which we have characterized
as "'trial error.'" See
Arizona v.
Fulminante,
499 U. S. 279,
307 (1991). Trial error "occur[s] during the presentation of the
case to the jury," and is amenable to harmlesserror analysis
because it "may ... be quantitatively assessed in the context of
other evidence presented in order to determine [the effect it had
on the tria!]."
Id., at 307-308. At the other end of the
spectrum of constitutional errors lie "structural defects in the
constitution of the trial mechanism, which defy analysis by
'harmless-error' standards."
Id., at 309. The existence of
such defects-deprivation of the right to counsel,4 for
example-requires automatic reversal of the
4
Gideon v.
Wainwright, 372 U. S. 335 (1963).
630
conviction because they infect the entire trial process. See
id., at 309-310. Since our landmark decision in
Chapman v.
California, 386 U. S. 18 (1967), we
have applied the harmless-beyond-a-reasonable-doubt standard in
reviewing claims of constitutional error of the trial type.
In
Chapman, we considered whether the prosecution's
reference to the defendants' failure to testify at trial, in
violation of the Fifth Amendment privilege against
selfincrimination,5 required reversal of their convictions. We
rejected the argument that the Constitution requires a blanket rule
of automatic reversal in the case of constitutional error, and
concluded instead that "there may be some constitutional errors
which in the setting of a particular case are so unimportant and
insignificant that they may, consistent with the Federal
Constitution, be deemed harmless."
Id., at 22. After
examining existing harmless-error rules, including the federal rule
(28 U. S. C. § 2111), we held that "before a federal constitutional
error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt." 386 U. S.,
at 24. The State bears the burden of proving that an error passes
muster under this standard.
Chapman reached this Court on direct review, as have most
of the cases in which we have applied its harmlesserror standard.
Although we have applied the
Chapman standard in a handful
of federal habeas cases, see,
e. g., Yates v.
Evatt,
500 U. S. 391
(1991);
Rose v.
Clark, 478 U. S. 570 (1986);
Milton v.
Wainwright, 407 U. S. 371 (1972);
Anderson v.
Nelson, 390 U. S. 523 (1968)
(per curiam), we have yet squarely to address its
applicability on collateral review.6
5
Griffin v.
California, 380 U. S. 609 (1965).
6 In
Greer v.
Miller, 483 U. S. 756 (1987), we
granted certiorari to consider the same question presented here but
did not reach this question because we concluded that no
Doyle error had occurred in that case. See 483 U. S., at
761, n. 3, 765. But see id., at 768 (STEVENS, J., concurring in
judgment) ("I believe the question presented in the certiorari
petition-
631
Petitioner contends that we are bound by these habeas cases, by
way of
stare decisis, from holding that the
Kotteakos
harmless-error standard applies on habeas review of
Doy le
error. But since we have never squarely addressed the issue, and
have at most assumed the applicability of the
Chapman
standard on habeas, we are free to address the issue on the merits.
See
Edelman v.
Jordan, 415 U. S. 651, 670-671
(1974).
The federal habeas corpus statute is silent on this point.
It permits federal courts to entertain a habeas petition on
behalf of a state prisoner "only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the
United States," 28 U. S. C. § 2254(a), and directs simply that the
court "dispose of the matter as law and justice require," § 2243.
The statute says nothing about the standard for harmless-error
review in habeas cases. Respondent urges us to fill this gap with
the
Kotteakos standard, under which an error requires
reversal only if it "had substantial and injurious effect or
influence in determining the jury's verdict."
Kotteakos v.
United States, 328 U. S., at 776. This standard is grounded
in the federal harmless-error statute. 28 U. S. C. § 2111 ("On the
hearing of any appeal or writ of certiorari in any case, the court
shall give judgment after an examination of the record without
regard to errors or defects which do not affect the substantial
rights of the parties").7 On its face § 2111 might seem to address
the situ-
whether a federal court should apply a different standard in
reviewing
Doyle errors
in a habeas corpus
action-should be answered in the affirmative") (emphasis in
original).
7In
Kotteakos, we construed §2111's statutory
predecessor, 28 U. S. C. §391 (1925-1926 ed.). Section 391
provided: "On the hearing of any appeal, certiorari, writ of error,
or motion for a new trial, in any case, civil or criminal, the
court shall give judgment after an examination of the entire record
before the court, without regard to technical errors, defects, or
exceptions which do not affect the substantial rights of the
parties." In formulating §391's harmless-error standard, we focused
on the phrase "affect the substantial rights of the parties," and
held
632
ation at hand, but to date we have limited its application to
claims of nonconstitutional error in federal criminal cases. See,
e. g., United States v.
Lane, 474 U. S. 438 (1986).
Petitioner asserts that Congress' failure to enact various
proposals since
Chapman was decided that would have limited
the availability of habeas relief amounts to legislative
disapproval of application of a less stringent harmless-error
standard on collateral review of constitutional error. Only one of
these proposals merits discussion here. In 1972, a bill was
proposed that would have amended 28 U. S. C. § 2254 to require
habeas petitioners to show that "'a different result would probably
have obtained if such constitutional violation had not occurred.'"
118 Congo Rec. 24936 (1972) (quoting S. 3833, 92d Cong., 2d Sess.
(1972)). In response, the Attorney General suggested that the above
provision be modified to make habeas relief available only where
the petitioner "'suffered a substantial deprivation of his
constitutional rights at his trial.'" 118 Congo Rec. 24939 (1972)
(quoting letter from Richard G. Kleindienst, Attorney General, to
Emanuel Celler, Chairman of the House Committee on the Judiciary
(June 21, 1972)). This language of course parallels the federal
harmless-error rule. But neither the Attorney General's suggestion
nor the proposed bill itself was ever enacted into law.
As a general matter, we are "reluctant to draw inferences from
Congress' failure to act."
Schneidewind v.
ANR Pipeline
Co., 485 U. S.
293, 306 (1988) (citing
American Trucking Assns., Inc.
v.
Atchison, T. & S.
F. R. Co., 387 U. S. 397,
that the test was whether the error "had substantial and
injurious effect or influence in determining the jury's verdict."
328 U. S., at 776. Although Congress tinkered with the language of
§ 391 when it enacted § 2111 in its place in 1949, Congress left
untouched the phrase "affect the substantial rights of the
parties." Thus, the enactment of §2111 did not alter the basis for
the harmless-error standard announced in
Kotteakos. If
anything, Congress' deletion of the word "technical," makes § 2111
more amenable to harmless-error review of constitutional
violations. Cf.
United States v.
Hasting, 461 U. S. 499, 509-510,
n. 7 (1983).
633
416-418 (1967));
Red Lion Broadcasting Co. v.
FCC,
395 U. S. 367,
381, n. 11 (1969)). We find no reason to depart from this rule
here. In the absence of any express statutory guidance from
Congress, it remains for this Court to determine what
harmless-error standard applies on collateral review of
petitioner's
Doyle claim. We have filled the gaps of the
habeas corpus statute with respect to other matters, see,
e. g.,
McCleskey v.
Zant, 499 U. S. 467, 487
(1991);
Wainwright v.
Sykes, 433 U. S. 72, 81 (1977);
Sanders v.
United States, 373 U. S. 1, 15 (1963);
Townsend v.
Sain, 372 U. S. 293, 312-313
(1963), and find it necessary to do so here. As always, in defining
the scope of the writ, we look first to the considerations
underlying our habeas jurisprudence, and then determine whether the
proposed rule would advance or inhibit these considerations by
weighing the marginal costs and benefits of its application on
collateral review.
The principle that collateral review is different from direct
review resounds throughout our habeas jurisprudence. See,
e. g.,
Wright v.
West, 505 U. S. 277, 292-293
(1992) (opinion of THOMAS, J.);
Teague v.
Lane,
489 U. S. 288,
306 (1989) (opinion of O'CONNOR, J.);
Pennsylvania v.
Finley, 481 U.
S. 551, 556557 (1987);
Mackey v.
United States,
401 U. S. 667,
682 (1971) (Harlan, J., concurring in judgments in part and
dissenting in part). Direct review is the principal avenue for
challenging a conviction. "When the process of direct reviewwhich,
if a federal question is involved, includes the right to petition
this Court for a writ of certiorari-comes to an end, a presumption
of finality and legality attaches to the conviction and sentence.
The role of federal habeas proceedings, while important in assuring
that constitutional rights are observed, is secondary and limited.
Federal courts are not forums in which to relitigate state trials."
Barefoot v.
Estelle, 463 U. S. 880, 887
(1983).
In keeping with this distinction, the writ of habeas corpus has
historically been regarded as an extraordinary remedy, "a bulwark
against convictions that violate 'fundamental fair-
634
ness.'"
Engle v.
Isaac, 456 U. S. 107, 126 (1982)
(quoting
Wainwright v.
Sykes, supra, at 97 (STEVENS,
J., concurring)). "Those few who are ultimately successful [in
obtaining habeas relief] are persons whom society has grievously
wronged and for whom belated liberation is little enough
compensation."
Fay v.
Noia, 372 U. S. 391, 440-441
(1963). See also
Kuhlmann v.
Wilson, 477 U. S. 436, 447 (1986)
(plurality opinion) ("The Court uniformly has been guided by the
proposition that the writ should be available to afford relief to
those 'persons whom society has grievously wronged' in light of
modern concepts of justice") (quoting
Fay v.
Noia,
supra, at 440-441);
Jackson v.
Virginia, 443 U. S. 307, 332, n. 5
(1979) (STEVENS, J., concurring in judgment) (Habeas corpus "is
designed to guard against extreme malfunctions in the state
criminal justice systems"). Accordingly, it hardly bears repeating
that" 'an error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.'"
United States v.
Frady, 456 U. S. 152, 165 (1982)
(quoting
United States v.
Addonizio, 442 U. S. 178, 184
(1979)).8
Recognizing the distinction between direct and collateral
review, we have applied different standards on habeas than would be
applied on direct review with respect to matters other than
harmless-error analysis. Our recent retroactivity jurisprudence is
a prime example. Although new rules always have retroactive
application to criminal cases on direct review,
Griffith v.
Kentucky, 479
U. S. 314, 320-328 (1987), we have held that they seldom have
retroactive application to criminal cases on federal habeas,
Teague v.
Lane, supra, at 305-310 (opinion of
O'CONNOR, J.). Other examples abound throughout our habeas cases.
See,
e. g., Pennsylvania v.
8 For instance, we have held that an error of law does not
provide a basis for habeas relief under 28 U. S. C. § 2255 unless
it constitutes "'a fundamental defect which inherently results in a
complete miscarriage of justice.'''
United States v.
Timmreck, 441
U. S. 780, 783 (1979) (quoting
Hill v.
United
States, 368 U. S.
424, 428 (1962)).
635
Finley, 481
U. S. 551, 555-556 (1987) (Although the Constitution guarantees
the right to counsel on direct appeal,
Douglas v.
California, 372 U. S. 353, 355
(1963), there is no "right to counsel when mounting collateral
attacks");
United States v.
Frady, supra, at 162-169
(While the federal "plain error" rule applies in determining
whether a defendant may raise a claim for the first time on direct
appeal, the "cause and prejudice" standard applies in determining
whether that same claim may be raised on habeas);
Stone v.
Powell, 428 U.
S. 465, 489-496 (1976) (Claims under
Mapp v.
Ohio, 367 U.
S. 643 (1961), are not cognizable on habeas as long as the
state courts have provided a full and fair opportunity to litigate
them at trial or on direct review).
The reason most frequently advanced in our cases for
distinguishing between direct and collateral review is the State's
interest in the finality of convictions that have survived direct
review within the state court system. See,
e. g., Wright v.
West, supra, at 293 (opinion of THOMAS, J.);
McCleskey v.
Zant, 499 U. S., at 491;
Wainwright v.
Sykes, 433 U. S., at 90. We have also
spoken of comity and federalism. "The States possess primary
authority for defining and enforcing the criminal law. In criminal
trials they also hold the initial responsibility for vindicating
constitutional rights. Federal intrusions into state criminal
trials frustrate both the States' sovereign power to punish
offenders and their good-faith attempts to honor constitutional
rights."
Engle v.
Isaac, supra, at 128. See also
Coleman v.
Thompson, 501 U. S. 722, 748
(1991);
McCleskey, supra, at 491. Finally, we have
recognized that "[l]iberal allowance of the writ ... degrades the
prominence of the trial itself,"
Engle, supra, at 127, and
at the same time encourages habeas petitioners to relitigate their
claims on collateral review, see
Rose v.
Lundy,
455 U. S. 509,
547 (1982) (STEVENS, J., dissenting).
In light of these considerations, we must decide whether the
same harmless-error standard that the state courts ap-
636
plied on direct review of petitioner's Doyle claim also applies
in this habeas proceeding. We are the sixth court to pass on the
question whether the State's use for impeachment purposes of
petitioner's post-Miranda silence in this case requires reversal of
his conviction. Each court that has reviewed the record has
disagreed with the court before it as to whether the State's Doyle
error was "harmless." State courts are fully qualified to identify
constitutional error and evaluate its prejudicial effect on the
trial process under Chapman, and state courts often occupy a
superior vantage point from which to evaluate the effect of trial
error. See Rushen v. Spain,
464 U. S. 114, 120 (1983)
(per curiam). For these reasons, it scarcely seems logical to
require federal habeas courts to engage in the identical approach
to harmless-error review that Chapman requires state courts to
engage in on direct review.
Petitioner argues that application of the Chapman harmless-error
standard on collateral review is necessary to deter state courts
from relaxing their own guard in reviewing constitutional error and
to discourage prosecutors from committing error in the first place.
Absent affirmative evidence that state-court judges are ignoring
their oath, we discount petitioner's argument that courts will
respond to our ruling by violating their Article VI duty to uphold
the Constitution. See Robb v. Connolly,
111 U. S. 624, 637
(1884). Federalism, comity, and the constitutional obligation of
state and federal courts all counsel against any presumption that a
decision of this Court will "deter" lower federal or state courts
from fully performing their sworn duty. See Engle, supra, at 128;
Schneckloth v. Bustamonte,
412 U. S. 218, 263-265
(1973) (Powell, J., concurring). In any event, we think the costs
of applying the Chapman standard on federal habeas outweigh the
additional deterrent effect, if any, that would be derived from its
application on collateral review.
637
Overturning final and presumptively correct convictions on
collateral review because the State cannot prove that an error is
harmless under
Chapman undermines the States' interest in
finality and infringes upon their sovereignty over criminal
matters. Moreover, granting habeas relief merely because there is a
"'reasonable possibility'" that trial error contributed to the
verdict, see
Chapman v.
California, 386 U. S., at 24
(quoting
Fahy v.
Connecticut, 375 U. S. 85, 86 (1963)),
is at odds with the historic meaning of habeas corpus-to afford
relief to those whom society has "grievously wronged." Retrying
defendants whose convictions are set aside also imposes significant
"social costs," including the expenditure of additional time and
resources for all the parties involved, the "erosion of memory" and
"dispersion of witnesses" that accompany the passage of time and
make obtaining convictions on retrial more difficult, and the
frustration of "society's interest in the prompt administration of
justice."
United States v.
Mechanik, 475 U. S. 66, 72 (1986)
(internal quotation marks omitted). And since there is no statute
of limitations governing federal habeas, and the only laches
recognized is that which affects the State's ability to defend
against the claims raised on habeas, retrials following the grant
of habeas relief ordinarily take place much later than do retrials
following reversal on direct review.
The imbalance of the costs and benefits of applying the
Chapman harmless-error standard on collateral review
counsels in favor of applying a less onerous standard on habeas
review of constitutional error. The
Kotteakos standard, we
believe, fills the bill. The test under
Kotteakos is whether
the error "had substantial and injurious effect or influence in
determining the jury's verdict." 328 U. S., at 776. Under this
standard, habeas petitioners may obtain plenary review of their
constitutional claims, but they are not entitled to habeas relief
based on trial error unless they can establish that it resulted in
"actual prejudice." See
United States v.
Lane,
474 U. S. 438,
449 (1986). The
Kotteakos
638
standard is thus better tailored to the nature and purpose of
collateral review and more likely to promote the considerations
underlying our recent habeas cases. Moreover, because the
Kotteakos standard is grounded in the federal harmless-error
rule, 28 U. S. C. § 2111, federal courts may turn to an existing
body of case law in applying it. Therefore, contrary to the
assertion of petitioner, application of the
Kotteakos
standard on collateral review is unlikely to confuse matters for
habeas courts.
For the foregoing reasons, then, we hold that the
Kotteakos harmless-error standard applies in determining
whether habeas relief must be granted because of constitutional
error of the trial type.9 All that remains to be decided is whether
petitioner is entitled to relief under this standard based on the
State's
Doy le error. Because the Court of Appeals applied
the
Kotteakos standard below, we proceed to this question
ourselves rather than remand the case for a new harmless-error
determination. Cf.
Yates v.
Evatt, 500 U. S. 391, 407
(1991). At trial, petitioner admitted shooting Hartman, but claimed
it was an accident. The principal question before the jury,
therefore, was whether the State met its burden in proving beyond a
reasonable doubt that the shooting was intentional. Our inquiry
here is whether, in light of the record as a whole, the State's
improper use for impeachment purposes of petitioner's
post-Miranda silence, see n. 2,
supra, "had
substantial and injurious effect or influence in determining the
jury's verdict." We think it clear that it did not.
9 Our holding does not foreclose the possibility that in an
unusual case, a deliberate and especially egregious error of the
trial type, or one that is combined with a pattern of prosecutorial
misconduct, might so infect the integrity of the proceeding as to
warrant the grant of habeas relief, even if it did not
substantially influence the jury's verdict. Cf.
Greer v.
Miller, 483 U.
S. 756, 769 (1987) (STEVENS, J., concurring in judgment). We,
of course, are not presented with such a situation here.
639
The State's references to petitioner's
post-Miranda
silence were infrequent, comprising less than two pages of the
900-page trial transcript in this case. And in view of the State's
extensive and permissible references to petitioner's
pre-Miranda silence-i.
e., his failure to mention
anything about the shooting being an accident to the officer who
found him in the ditch, the man who gave him a ride to Winona, or
the officers who eventually arrested him-its references to
petitioner's
post-Miranda silence were, in effect,
cumulative. Moreover, the State's evidence of guilt was, if not
overwhelming, certainly weighty. The path of the bullet through Mr.
Hartman's body was inconsistent with petitioner's testimony that
the rifle had discharged as he was falling. The police officers who
searched the Hartmans' home found nothing in the downstairs hallway
that could have caused petitioner to trip. The rifle was found
outside the house (where Hartman was shot), not inside where
petitioner claimed it had accidently fired, and there was a live
round rammed in the gun's chamber, suggesting that petitioner had
tried to fire a second shot. Finally, other circumstantial
evidence, including the motive proffered by the State, also pointed
to petitioner's guilt.
In light of the foregoing, we conclude that the
Doyle
error that occurred at petitioner's trial did not "substantial[ly]
... influence" the jury's verdict. Petitioner is therefore not
entitled to habeas relief, and the judgment of the Court of Appeals
is
Affirmed.
JUSTICE STEVENS, concurring.
The Fourteenth Amendment prohibits the deprivation of liberty
"without due process of law"; that guarantee is the source of the
federal right to challenge state criminal convictions that result
from fundamentally unfair trial proceedings. Neither the term "due
process," nor the concept of fundamental unfairness itself, is
susceptible of precise and categor-
640
ical definition, and no single test can guarantee that a judge
will grant or deny habeas relief when faced with a similar set of
facts. Every allegation of due process denied depends on the
specific process provided, and it is familiar learning that all
"claims of constitutional error are not fungible."
Rose v.
Lundy, 455 U.
S. 509, 543 (1982) (STEVENS, J., dissenting). As the Court
correctly notes, constitutional due process violations vary
dramatically in significance; harmless trial errors are at one end
of a broad spectrum, and what the Court has characterized as
"structural" defects-those that make a trial fundamentally unfair
even if they do not affect the outcome of the proceeding-are at
"the other end of the spectrum,"
ante, at 629. Although
Members of the Court have disagreed about the seriousness of the
due process violation identified in
Doyle v.
Ohio,
426 U. S. 610
(1976), in this case we unanimously agree that a constitutional
violation occurred; moreover, we also all agree that some version
of harmless-error analysis is appropriate.
We disagree, however, about whether the same form of
harmless-error analysis should apply in a collateral attack as on a
direct appeal, and, if not, what the collateral attack standard
should be for an error of this kind. The answer to the first
question follows from our long history of distinguishing between
collateral and direct review, see,
e. g.,
Sunal v.
Large, 332 U.
S. 174, 178 (1947), and confining collateral relief to cases
that involve fundamental defects or omissions inconsistent with the
rudimentary demands of fair procedure, see,
e. g., United
States v.
Timmreck, 441 U. S. 780, 783
(1979), and cases cited therein. The Court answers the second
question by endorsing Justice Rutledge's thoughtful opinion for the
Court in
Kotteakos v.
United States, 328 U. S. 750 (1946).
Ante, at 623,638. Because that standard accords with the
statutory rule for reviewing other trial errors that affect
substantial rights; places the burden on prosecutors to explain why
those errors were harmless; requires a habeas court to review the
entire record
de novo in determining
641
whether the error influenced the jury's deliberations; and
leaves considerable latitude for the exercise of judgment by
federal courts, I am convinced that our answer is correct. I write
separately only to emphasize that the standard is appropriately
demanding.
As the Court notes,
ante, at 631-632, n. 7, the
Kotteakos standard is grounded in the 1919 federal
harmless-error statute. Congress had responded to the widespread
concern that federal appellate courts had become "impregnable
citadels of technicality,"
Kotteakos, 328 U. S., at 759, by
issuing a general command to treat error as harmless unless it "is
of such a character that its natural effect is to prejudice a
litigant's substantial rights,"
id., at 760-761.
Kotteakos plainly stated that unless an error is merely
"technical," the burden of sustaining a verdict by demonstrating
that the error was harmless rests on the prosecution.1 A
constitutional violation, of course, would never fall in the
"technical" category.
Of particular importance, the statutory command requires the
reviewing court to evaluate the error in the context of the entire
trial record. As the Court explained: "In the final analysis
judgment in each case must be influenced by conviction resulting
from examination of the proceedings in their entirety, tempered but
not governed in any rigid sense of
1 "It is also important to note that the purpose of the bill in
its final form was stated authoritatively to be 'to cast upon the
party seeking a new trial the burden of showing that any technical
errors that he may complain of have affected his substantial
rights, otherwise they are to be disregarded.' H. R. Rep. No. 913,
65th Cong., 3d Sess., 1. But that this burden does not extend to
all errors appears from the statement which follows immediately.
'The proposed legislation affects only technical errors. If the
error is of such a character that its natural effect is to
prejudice a litigant's substantial rights, the burden of sustaining
a verdict will, notwithstanding this legislation rest upon the one
who claims under it.'
Ibid.; Bruno v.
United States,
[
308 U. S.
287,294 (1939)];
Weiler v.
United States,
323 U. S. 606,
611 [(1945)]."
Kotteakos v.
United States, 328 U. S.,
at 760-761.
642
stare decisis by what has been done in similar
situations."
Id., at 762.
To apply the
Kotteakos standard properly, the reviewing
court must, therefore, make a
de novo examination of the
trial record. The Court faithfully engages in such
de novo
review today, see
ante, at 638-639, just as the plurality
did in the dispositive portion of its analysis in
Wright v.
West, 505 U.
S. 277, 295-297 (1992) (opinion of THOMAS, J.). The
Kotteakos requirement of
de novo review of errors
that prejudice substantial rights-as all constitutional errors
surely do-is thus entirely consistent with the Court's longstanding
commitment to the
de novo standard of review of mixed
questions of law and fact in habeas corpus proceedings. See
Wright v.
West, 505 U. S., at 299-303 (O'CONNOR, J.,
concurring in judgment).
The purpose of reviewing the entire record is, of course, to
consider all the ways that error can infect the course of a trial.
Although THE CHIEF JUSTICE properly quotes the phrase applied to
the errors in
Kotteakos (" 'substantial and injurious effect
or influence in determining the jury's verdict' "),
ante, at
623, 627, 637, 639, we would misread
Kotteak os itself if we
endorsed only a single-minded focus on how the error may (or may
not) have affected the jury's verdict. The habeas court cannot ask
only whether it thinks the petitioner would have been convicted
even if the constitutional error had not taken place.2
Kotteakos is full of warnings to avoid that result. It
requires a reviewing court to decide that "the error did not
influence the jury," 328 U. S., at 764, and that "the judgment was
not substantially swayed by the error," id., at 765. In a passage
that should be kept in mind by all courts that review trial
transcripts, Justice Rutledge wrote that the question is
not
"were they [the jurors] right in their judgment, regardless of
the error or its effect upon the verdict. It is
2 "The inquiry cannot be merely whether there was enough to
support the result, apart from the phase affected by the error."
Id., at 765.
643
rather what effect the error had or reasonably may be taken to
have had upon the jury's decision. The crucial thing is the impact
of the thing done wrong on the minds of other men, not on one's
own, in the total setting.
"This must take account of what the error meant to them, not
singled out and standing alone, but in relation to all else that
happened. And one must judge others' reactions not by his own, but
with allowance for how others might react and not be regarded
generally as acting without reason. This is the important
difference, but one easy to ignore when the sense of guilt comes
strongly from the record." Id., at 764 (citations
omitted).
The
Kotteakos standard that will now apply on collateral
review is less stringent than the
Chapman v.
California,
386 U. S. 18 (1967), standard applied on direct review. Given
the critical importance of the faculty of judgment in administering
either standard, however, that difference is less significant than
it might seem-a point well illustrated by the differing opinions
expressed by THE CHIEF JUSTICE and by JUSTICE KENNEDY in
Arizona v.
Fulminante, 499 U. S. 279, 302, 313
(1991). While THE CHIEF JUSTICE considered the admission of the
defendant's confession harmless error under
Chapman, see 499
U. S., at 312 (dissenting opinion), JUSTICE KENNEDY'S cogent
analysis demonstrated that the error could not reasonably have been
viewed as harmless under a standard even more relaxed than the one
we announce today, see id., at 313-314 (opinion concurring in
judgment). In the end, the way we phrase the governing standard is
far less important than the quality of the judgment with which it
is applied.
Although our adoption of
Kotteakos does impose a new
standard in this context, it is a standard that will always require
"the discrimination ... of judgment transcending confinement by
formula or precise rule.
United States v.
644
Socony- Vacuum Oil Co., 310 U. S. 150, 240
[(1940)]." 328 U. S., at 761. 3 In my own judgment, for the reasons
explained by THE CHIEF JUSTICE, the
Doyle error that took
place in petitioner's trial did not have a substantial and
injurious effect or influence in determining the jury's verdict.
Accordingly, I concur in the Court's opinion and judgment.
JUSTICE WHITE, with whom JUSTICE BLACKMUN joins, and with whom
JUSTICE SOUTER joins in part, dissenting.
Assuming that petitioner's conviction was in fact tainted by a
constitutional violation that, while not harmless beyond a
reasonable doubt, did not have "substantial and injurious effect or
influence in determining the jury's verdict,"
Kotteakos v.
United States, 328 U. S. 750, 776
(1946), it is undisputed that he would be entitled to reversal in
the state courts on appeal or in this Court on certiorari review.
If, however, the state courts erroneously concluded that no
violation had occurred or (as is the case here) that it was
harmless beyond a reasonable doubt, and supposing further that
certiorari was either not sought or not granted, the majority would
foreclose relief on federal habeas review. As a result of today's
decision, in short, the fate of one in state custody turns on
whether the state courts properly applied the Federal Constitution
as then interpreted by decisions of this Court, and on whether we
choose to review his claim on certiorari. Because neither the
federal habeas corpus statute nor our own precedents can support
such illogically disparate treatment, I dissent.
3 Justice Rutledge continued: "That faculty cannot ever be
wholly imprisoned in words, much less upon such a criterion as what
are only technical, what substantial rights; and what really
affects the latter hurtfully. Judgment, the play of impression and
conviction along with intelligence, varies with judges and also
with circumstance. What may be technical for one is substantial for
another; what minor and unimportant in one setting crucial in
another."
Id., at 761.
645
I A
Chapman v.
California, 386 U. S. 18 (1967),
established the federal nature of the harmless-error standard to be
applied when constitutional rights are at stake. Such rights, we
stated, are "rooted in the Bill of Rights, offered and championed
in the Congress by James Madison, who told the Congress that the
'independent' federal courts would be the 'guardians of those
rights.'''
Id., at 21 (footnote omitted). Thus,
"[w]hether a conviction for crime should stand when a State has
failed to accord federal constitutionally guaranteed rights is
every bit as much of a federal question as what particular
federal constitutional provisions themselves mean, what they
guarantee, and whether they have been denied. With faithfulness
to the constitutional union of the States, we cannot leave to the
States the formulation of the authoritative laws, rules, and
remedies designed to protect people from infractions by the States
of federally guaranteed rights." Ibid. (emphasis added).
Chapman, it is true, never expressly identified the
source of this harmless-error standard. But, whether the standard
be characterized as a "necessary rule" of federal law,
ibid., or criticized as a quasi-constitutional doctrine, see
id., at 46, 51 (Harlan, J., dissenting), the Court clearly viewed
it as essential to the safeguard of federal constitutional rights.
Otherwise, there would have been no justification for imposing the
rule on state courts. Cf. id., at 48-51 (Harlan, J., dissenting).
As far as I can tell, the majority does not question
Chapman's vitality on direct review and, therefore, the
federal and constitutional underpinnings on which it rests.
That being so, the majority's conclusion is untenable.
Under
Chapman, federal law requires reversal of a
state
646
conviction involving a constitutional violation that is not
harmless beyond a reasonable doubt. A defendant whose conviction
has been upheld despite the occurrence of such a violation
certainly is "in custody in violation of the Constitution or laws
... of the United States," 28 U. S. C. § 2254(a), and therefore is
entitled to habeas relief. Although we have never explicitly held
that this was the case, our practice before this day plainly
supports this view, as the majority itself acknowledges. See,
e. g.,
Rose v.
Clark, 478 U. S. 570, 584
(1986); see also
ante, at 630.
B
The Court justifies its decision by asserting that "collateral
review is different from direct review,"
ante, at 633, and
that "we have applied different standards on habeas than would be
applied on direct review with respect to matters other than
harmless-error analysis,"
ante, at 634. All told, however,
it can only uncover a single example of a constitutional violation
that would entitle a state prisoner to relief on direct, but not on
collateral, review. Thus, federal habeas review is not available to
a defendant claiming that the conviction rests on evidence seized
in violation of the Fourth Amendment, even though such claims
remain cognizable in state courts.
Stone v.
Powell,
428 U. S. 465
(1976). I have elsewhere stated my reasons for disagreeing with
that holding, id., at 536-537 (WHITE, J., dissenting), but today's
decision cannot be supported even under
Stone's own
terms.
Stone was premised on the view that the exclusionary rule
is not a "personal constitutional right," id., at 486, and that it
"does not exist to remedy any wrong committed against the
defendant, but rather to deter violations of the Fourth Amendment
by law enforcement personnel,"
Kimmelman v.
Morrison,
477 U. S. 365,
392 (1986) (Powell, J., concurring in judgment). In other words,
one whose conviction rests on evidence obtained in a search or
seizure that violated the Fourth Amendment is deemed not to be
unconstitutionally
647
detained. It is no surprise, then, that the Court of Appeals in
this case rested its decision on an analogy between the rights
guaranteed in
Doyle v.
Ohio, 426 U. S. 610 (1976), and
those at issue in
Stone. See
944 F.2d
1363, 1371-1372 (CA7
1991). Doyle, it concluded, "is ...
a prophylactic rule designed to protect another prophylactic rule
from erosion or misuse." 944 F. 2d, at 1370.
But the Court clearly and, in my view, properly rejects that
view. Indeed, it repeatedly emphasizes that
Doyle "is rooted
in fundamental fairness and due process concerns," that "due
process is violated whenever the prosecution uses for impeachment
purposes a defendant's
post-Miranda silence," and that it
"does not bear the hallmarks of a prophylactic rule."
Ante,
at 629. Because the Court likewise leaves undisturbed the notion
that
Chapman's harmlesserror standard is required to protect
constitutional rights, see
supra, at 645, its conclusion
that a
Doyle violation that fails to meet that standard will
not trigger federal habeas relief is inexplicable.
II
The majority's decision to adopt this novel approach is far from
inconsequential. Under
Chapman, the State must prove beyond
a reasonable doubt that the constitutional error "did not
contribute to the verdict obtained." 386 U. S., at 24. In contrast,
the Court now invokes
Kotteakos v.
United States,
328 U. S. 750
(1946)-a case involving a nonconstitutional error of trial
procedure-to impose on the defendant the burden of establishing
that the error "resulted in 'actual prejudice.'"
Ante, at
637. Moreover, although the Court of Appeals limited its holding to
Doyle and other socalled "prophylactic" rules, 944 F. 2d, at
1375, and although the parties' arguments were similarly focused,
see Brief for Respondent 36-37; Brief for United States as
Amicus Curiae 16, 19, n. 11, the Court extends its holding
to all "constitutional error[s] of the trial type,"
ante, at
638. Given that
648
all such "trial errors" are now subject to harmless-error
analysis, see
Arizona v.
Fulminante, 499 U. S. 279, 307-308
(1991), and that "most constitutional errors" are of this variety,
id., at 306, the Court effectively has ousted
Chapman
from habeas review of state convictions. * In other words, a state
court determination that a constitutional error-even one as
fundamental as the admission of a coerced confession, see
Fulminante, supra, at 308-is harmless beyond a reasonable
doubt has in effect become unreviewable by lower federal courts by
way of habeas corpus.
I believe this result to be at odds with the role Congress has
ascribed to habeas review, which is, at least in part, to deter
both prosecutors and courts from disregarding their constitutional
responsibilities. "[T]he threat of habeas serves as a necessary
additional incentive for trial and appellate courts throughout the
land to conduct their proceedings in a manner consistent with
established constitutional standards."
Desist v.
United
States, 394 U. S.
244, 262-263 (1969) (Harlan, J., dissenting); see also
Teague v.
Lane, 489 U. S. 288, 306 (1989) (plurality
opinion). In response, the majority characterizes review of the
Chapman determination by a federal habeas court as "scarcely
... logical,"
ante, at 636, and, in any event, sees no
evidence that deterrence is needed.
Ibid. Yet the logic of
such practice is not ours to assess for, as Justice Frankfurter
explained:
"Congress could have left the enforcement of federal
constitutional rights governing the administration of criminal
justice in the States exclusively to the State courts. These
tribunals are under the same duty as the federal courts to respect
rights under the United States Constitution .... But the wisdom of
such a modification in the law is for Congress to consider .... "
Brown v.
* As I explained in Fulminante, I have serious doubt regarding
the effort to classify in systematic fashion constitutional
violations as either "trial errors"-that are subject to
harmlessness analysis-or "structural defects"-that are not. See 499
U. S., at 290 (WHITE, J., dissenting).
649
Allen, 344
U. S. 443, 499-500 (1953) (opinion of Frankfurter, J.).
"[T]he prior State determination of a claim under the United
States Constitution cannot foreclose consideration of such a claim,
else the State court would have the final say which the Congress
... provided it should not have." Id., at 500.
See also Reed v. Ross,
468 U. S. 1, 10 (1984). As
for the "empirical evidence" the majority apparently seeks, I
cannot understand its import. Either state courts are faithful to
federal law, in which case there is no cost in applying the Chapman
as opposed to the Kotteakos standard on collateral review; or they
are not, and it is precisely the role of habeas corpus to rectify
that situation.
Ultimately, the central question is whether States may detain
someone whose conviction was tarnished by a constitutional
violation that is not harmless beyond a reasonable doubt. Chapman
dictates that they may not; the majority suggests that, so long as
direct review has not corrected this error in time, they may. If
state courts remain obliged to apply Chapman, and in light of the
infrequency with which we grant certiorari, I fail to see how this
decision can be reconciled with Congress' intent.
III
Our habeas jurisprudence is taking on the appearance of a
confused patchwork in which different constitutional rights are
treated according to their status, and in which the same
constitutional right is treated differently depending on whether
its vindication is sought on direct or collateral review. I believe
this picture bears scant resemblance either to Congress' design or
to our own precedents. The Court of Appeals having yet to apply
Chapman to the facts of this case, I would remand to that court for
determination of whether the
Doyle violation was harmless
beyond a reasonable doubt. I dissent.
650
JUSTICE BLACKMUN, dissenting.
I agree that "today's decision cannot be supported even under
Stone's own terms,"
ante, at 646 (WHITE, J.,
dissenting). Therefore, I join JUSTICE WHITE'S dissent in its
entirety.
JUSTICE O'CONNOR, dissenting.
I have no dispute with the Court's observation that "collateral
review is different from direct review."
Ante, at 633. Just
as the federal courts may decline to adjudicate certain issues of
federal law on habeas because of prudential concerns, see
Withrow v.
Williams, post, at 686;
post, at
699-700 (O'CONNOR, J., concurring in part and dissenting in part),
so too may they resolve specific claims on habeas using different
and more lenient standards than those applicable on direct review,
see,
e. g., Teague v.
Lane, 489 U. S. 288, 299-310
(1989) (habeas claims adjudicated under the law prevailing at time
conviction became final and not on the basis of intervening changes
of law). But decisions concerning the Great Writ "warrant
restraint,"
Withrow, post, at 700 (O'CONNOR, J., concurring
in part and dissenting in part), for we ought not take lightly
alteration of that "'fundamental safeguard against unlawful
custody,'"
post, at 697-698 (quoting
Fay v.
Noia, 372 U.
S. 391, 449 (1963) (Harlan, J., dissenting)).
In my view, restraint should control our decision today.
The issue before us is not whether we should remove from the
cognizance of the federal courts on habeas a discrete prophylactic
rule unrelated to the truthfinding function of trial, as was the
case in
Stone v.
Powell, 428 U. S. 465 (1976), and
more recently in
Withrow v.
Williams, post, p. 680.
Rather, we are asked to alter a standard that not only finds
application in virtually every case of error but that also may be
critical to our faith in the reliability of the criminal process.
Because I am not convinced that the principles governing the
exercise of our habeas powers-federalism, finality, and
fairness-counsel against applying
Chapman's harmlesserror
standard on collateral review, I would adhere to our
651
former practice of applying it to cases on habeas and direct
review alike. See
ante, at 630. I therefore respectfully
dissent.
The Court begins its analysis with the nature of the
constitutional violation asserted,
ante, at 628-630, and
appropriately so. We long have recognized that the exercise of the
federal courts' habeas powers is governed by equitable principles.
Fay v.
Noia, supra, at 438;
Withrow, post, at
699-700 (O'CONNOR, J., concurring in part and dissenting in part).
And the nature of the right at issue is an important equitable
consideration. When a prisoner asserts the violation of a core
constitutional privilege critical to the reliability of the
criminal process, he has a strong claim that fairness favors
review; but if the infringement concerns only a prophylactic rule,
divorced from the criminal trial's truthfinding function, the
prisoner's claim to the equities rests on far shakier ground. Thus,
in
Withrow v.
Williams, this Court declined to bar
relitigation of
Miranda claims on habeas because
Miranda is connected to the Fifth Amendment and the Fifth
Amendment, in turn, serves the interests of reliability.
Withrow, post, at 691-692. I dissented because I believe
that
Miranda is a prophylactic rule that actually impedes
the truthseeking function of criminal trials.
Withrow, post,
at 700, 701-708. See also
Stone v.
Powell, supra, at
486, 490 (precluding review of exclusionary rule violations in part
because the rule is judicially fashioned and interferes with the
truthfinding function of trial).
Petitioner in this case alleged a violation of
Doyle v.
Ohio, 426 U.
S. 610 (1976), an error the Court accurately characterizes as
constitutional trial error.
Ante, at 629-630. But the
Court's holding today, it turns out, has nothing to do with
Doyle error at all. Instead, the Court announces that the
harmless-error standard of
Chapman v.
California,
386 U. S. 18, 24
(1967), which requires the prosecution to prove constitutional
error harmless beyond a reasonable doubt, no longer applies to
any trial error asserted on habeas, whether it is a
652
Doyle error or not. In
Chapman's place, the Court
substitutes the less rigorous standard of
Kotteakos v.
United States, 328 U. S. 750, 776
(1946).
Ante, at 638.
A repudiation of the application of
Chapman to
all
trial errors asserted on habeas should be justified, if at all,
based on the nature of the
Chapman rule itself. Yet, as
JUSTICE WHITE observes,
ante, at 645 (dissenting opinion),
one searches the majority opinion in vain for a discussion of the
basis for
Chapman's harmless-error standard. We are left to
speculate whether
Chapman is the product of constitutional
command or a judicial construct that may overprotect constitutional
rights. More important, the majority entirely fails to discuss the
effect of the
Chapman rule. If there is a unifying
theme to this Court's habeas jurisprudence, it is that the ultimate
equity on the prisoner's side-the possibility that an error may
have caused the conviction of an actually innocent person-is
sufficient by itself to permit plenary review of the prisoner's
federal claim.
Withrow, post, at 700 (O'CONNOR, J.,
concurring in part and dissenting in part) (citing cases). Whatever
the source of the
Chapman standard, the equities may favor
its application on habeas if it substantially promotes the central
goal of the criminal justice system-accurate determinations of
guilt and innocence. See
Withrow, post, at 705-706
(reasoning that, although
Miranda may be a prophylactic
rule, the fact that it is not "divorced" from the truthfinding
function of trial weighs in favor of its application on habeas);
Teague, supra, at 313 (if absence of procedure seriously
diminishes likelihood of accurate conviction, new rule requiring
such procedure may be retroactively applied on habeas).
In my view, the harmless-error standard often will be
inextricably intertwined with the interest of reliability. By now
it goes without saying that harmless-error review is of almost
universal application; there are few errors that may not be
forgiven as harmless.
Arizona v.
Fulminante, 499 U. S. 279, 306-307
(1991). For example, we have recognized
653
that a defendant's right to confront the witnesses against him
is central to the truthfinding function of the criminal trial. See,
e. g., Maryland v.
Craig, 497 U. S. 836, 845-847
(1990); Ohio v.
Roberts, 448 U. S. 56, 65 (1980);
Mattox v.
United States, 156 U. S. 237, 242-243
(1895); see also 3 W. Blackstone, Commentaries 373-374 (1768). But
Confrontation Clause violations are subject to harmless-error
review nonetheless. See
Coy v.
Iowa, 487 U. S. 1012,
1021-1022 (1988). When such an error is detected, the
harmless-error standard is crucial to our faith in the accuracy of
the outcome: The absence of full adversary testing, for example,
cannot help but erode our confidence in a verdict; a jury easily
may be misled by such an omission. Proof of harmlessness beyond a
reasonable doubt, however, sufficiently restores confidence in the
verdict's reliability that the conviction may stand despite the
potentially accuracy impairing error. Such proof demonstrates that,
even though the error had the
potential to induce the jury
to err, in fact there is no reasonable possibility that it did.
Rather, we are confident beyond a reasonable doubt that the error
had no influence on the jury's judgment at all. Cf.
In re
Winship, 397 U.
S. 358, 363-364 (1970) (proof of guilt beyond a reasonable
doubt indispensable to community's respect and confidence in
criminal process).
At least where errors bearing on accuracy are at issue, I am not
persuaded that the
Kotteakos standard offers an adequate
assurance of reliability. Under the Court's holding today, federal
courts on habeas are barred from offering relief unless the error"
'had substantial and injurious effect or influence in determining
the jury's verdict.'"
Ante, at 637 (quoting
Kotteakos,
supra, at 776). By tolerating a greater probability that an
error with the potential to undermine verdict accuracy was harmful,
the Court increases the likelihood that a conviction will be
preserved despite an error that actually affected the reliability
of the trial. Of course, the Constitution does not require that
every conceivable precau-
654
tion in favor of reliability be taken; and certainly 28 U. S. C.
§ 2254 does not impose such an obligation on its own. Indeed, I
agree with the Court that habeas relief under § 2254 is reserved
for those prisoners "whom society has 'grievously wronged.'"
Ante, at 637. But prisoners who may have been convicted
mistakenly because of constitutional trial error
have
suffered a grievous wrong and ought not be required to bear the
greater risk of uncertainty the Court now imposes upon them.
Instead, where constitutional error may have affected the accuracy
of the verdict, on habeas we should insist on such proof as will
restore our faith in the verdict's accuracy to a reasonable
certainty. Adherence to the standard enunciated in
Chapman
requires no more; and the equities require no less.
To be sure, the harmless-error inquiry will not always bear on
reliability. If the trial error being reviewed for harmlessness is
not itself related to the interest of accuracy, neither is the
harmless-error standard. Accordingly, in theory it would be neither
illogical nor grudging to reserve
Chapman for errors related
to the accuracy of the verdict, applying
Kotteakos' more
lenient rule whenever the error is of a type that does not impair
confidence in the trial's result. But the Court draws no such
distinction. On the contrary, it holds
Kotteakos applicable
to
all trial errors, whether related to reliability or not.
The Court does offer a glimmer of hope by reserving in a footnote
the possibility of an exception:
Chapman may remain
applicable, it suggests, in some "unusual" cases. But the Court's
description of those cases suggests that its potential exception
would be both exceedingly narrow and unrelated to reliability
concerns. See
ante, at 638, n. 9 (reserving the "possibility
that in an unusual case, a deliberate and especially egregious
error of the trial type" or error "combined with a pattern of
prosecutorial misconduct, might so infect the integrity of the
proceeding as to warrant the grant of habeas relief, even it did
not substantially influence the jury's verdict").
655
But even if the Court's holding were limited to errors divorced
from reliability concerns, the decision nevertheless would be
unwise from the standpoint of judicial administration. Like JUSTICE
WHITE, I do not believe we should turn our habeas jurisprudence
into a "patchwork" of rules and exceptions without strong
justification.
Ante, at 649 (dissenting opinion). The
interest of efficiency, always relevant to the scope of habeas
relief, see,
e. g., Stone, 428 U. S., at 491, n. 31;
Withrow, post, at 693-694;
post, at 708-713
(O'CONNOR, J., concurring in part and dissenting in part), favors
simplification of legal inquiries, not their multiplication. A rule
requiring the courts to distinguish between errors that affect
accuracy and those that do not, however, would open up a whole new
frontier for litigation and decision. In each case, the litigants
would brief and federal judges would be required to decide whether
the particular error asserted relates to accuracy. Given the number
of constitutional rules we have recognized and the virtually
limitless ways in which they might be transgressed, I cannot
imagine that the benefits brought by such litigation could outweigh
the costs it would impose.
In fact, even on its own terms the Court's decision buys the
federal courts a lot of trouble. From here on out, prisoners
undoubtedly will litigate-and judges will be forced to
decide-whether each error somehow might be wedged into the narrow
potential exception the Court mentions in a footnote today.
Moreover, since the Court only mentions the
possibility of
an exception, all concerned must also address whether the exception
exists at all. I see little justification for imposing these novel
and potentially difficult questions on our already overburdened
justice system.
Nor does the majority demonstrate that the
Kotteakos
standard will ease the burden of conducting harmless-error review
in those cases to which it does apply. Indeed, as JusTICE STEVENS
demonstrates in his concurrence,
Kotteakos is unlikely to
lighten the load of the federal judiciary at all. The courts still
must review the entire record in search of
656
conceivable ways the error may have influenced the jury; they
still must conduct their review
de novo; and they still must
decide whether they have sufficient confidence that the verdict
would have remained unchanged even if the error had not occurred.
See
ante, at 641-642. The only thing the Court alters today
is the degree of confidence that suffices. But
Kotteakos'
threshold is no more precise than
Chapman's; each requires
an exercise of judicial judgment that cannot be captured by the
naked words of verbal formulae.
Kotteakos, it is true, is
somewhat more lenient; it will permit more errors to pass
uncorrected. But that simply reduces the number of cases in which
relief will be granted. It does not decrease the burden of
identifying those cases that warrant relief.
Finally, the majority considers the costs of habeas review
generally.
Ante, at 637. Once again, I agree that those
costs-the effect on finality, the infringement on state
sovereignty, and the social cost of requiring retrial, sometimes
years after trial and at a time when a new trial has become
difficult or impossible-are appropriate considerations. See
Withrow, post, at 703-704 (O'CONNOR, J., concurring in part
and dissenting in part); see also
post, at 686-687, 708-709;
Stone, supra, at 489-491. But the Court does not explain how
those costs set the harmless-error inquiry apart from any other
question presented on habeas; such costs are inevitable
whenever relief is awarded. Unless we are to accept the
proposition that denying relief whenever possible is an unalloyed
good, the costs the Court identifies cannot by themselves justify
the lowering of standards announced today. The majority, of course,
does not contend otherwise; instead, it adheres to our traditional
approach of distinguishing between those claims that are worthy of
habeas relief and those that, for prudential and equitable reasons,
are not. Nonetheless, it seems to me that the Court's decision cuts
too broadly and deeply to comport with the equitable and remedial
nature of the habeas writ; it is neither justified nor
657
justifiable from the standpoint of fairness or judicial
efficiency. Because I would remand the case to the Court of Appeals
for application of
Chapman's more demanding harmless-error
standard, I respectfully dissent.
JUSTICE SOUTER, dissenting.
I join in all but the footnote and Part III of JUSTICE WHITE'S
dissent, subject only to the caveat that I do not mean to indicate
an opinion on the merits of
Stone v.
Powell, 428 U. S. 465 (1976).
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