finding that a jury instruction was not capable of misleading after taking into account, inter alia, the placement of the challenged instruction, the district court’s continuous reinforcement of the relevant legal principle, and the instruction to the jury to consider the charge in its entirety
How later courts described this case
- finding that a jury instruction was not capable of misleading after taking into account, inter alia, the placement of the challenged instruction, the district court’s continuous reinforcement of the relevant legal principle, and the instruction to the jury to consider the charge in its entirety
- explaining that, in the context of harmless error analysis, we “determine[] prejudice [by] consider[ing] the scope of the objectionable comments[,] their relationship to the entire proceeding, . . . and the strength of the evidence supporting the defendant’s conviction”
- stating that an error is harmless “when it is highly probable that the error did not contribute to the judgment,” which “requires that the court possess a sure conviction that the error did not prejudice the defendant” (emphasis and internal quotation marks omitted)
- holding that a conviction should not be reversed “when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error”
Written by the judges who cited it.
Later courts went against this
Overruled by Gray v. Maryland, 523 U.S. 185 (1998)
Gray overruled Zehrbach.
The opinion
LEWIS, Circuit Judge,
dissenting.
I join in Parts I and II of the majority opinion, and in Part III insofar as it overrules the per se rule of DiLoreto. However, I cannot join in Part III of the opinion to the extent it concludes that the error here was harmless.
It is difficult for me to imagine a statement which would carry a more powerful impact upon a jury, or which would be more likely to deter it from acquitting, than one which implies in no such uncertain terms that the defendants’ two chief witnesses were going to be indicted for their participation with the defendants in the underlying criminal activity. • That is exactly what happened here. *1268 The prosecutor’s statement was tantamount to telling the jury that the defendants’ two main witnesses were in fact as guilty as the defendants were and would themselves be brought to answer criminal charges, despite the fact that there was no evidence to suggest that these individuals were going to be indicted and despite the more compelling fact that they never were indicted.
The majority acknowledges that “the remark effectively encouraged the jury to reach a guilty verdict on irrelevant and illegitimate grounds.” Maj.Op. at 1266. How, then, can we be confident that “it is highly probable that the error did not contribute to the judgment”? See Maj.Op. at 1265, citing Govt. of Virgin Islands v. Toto, 529 F.2d 278, 284 (3d Cir.1976). “Highly probable” requires us to be virtually certain, as that standard is only satisfied when we hold a “sure conviction that the error did not prejudice” the defendant. See Maj.Op. at 1265, citing United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.), cert. denied 469 U.S. 880 , 105 S.Ct. 243 , 244, 83 L.Ed.2d 182 (1984). The majority acknowledges this also, but then shifts its focus from the impact of the remarks to the prosecutor’s motive in uttering them. I believe this diversion to be the fundamental flaw in the majority’s analysis. Since we must be convinced that a criminal defendant was not prejudiced for harmless error to apply, what difference does it make to that inquiry that the prosecutor might have meant something else in uttering the offending remarks? It is not what the prosecutor meant that should control, but rather the effect of what he said upon the defendants’ right to be judged by an untainted jury. Our focus should be to determine that it is almost certain that the error did not contribute to the conviction. In my view, the majority does not place sufficient emphasis upon this critical inquiry.
And it is precisely for this reason that I believe the majority fails to perceive the violence which remarks such as those at issue are capable of inflicting upon the unfettered fact-finding and truth-seeking mission of the jury, preferring instead to rely upon the court’s cautionary instructions and the quantum of evidence properly before the jury which pointed toward guilt. As I stated in my original dissent, “I cannot imagine any curative instruction that would be sufficient to purge the jury of the powerful impact of such an improper, unfounded assertion by the prosecutor.” United States v. Zehrbach, Nos. 93-7477 and 93-7493 at 8, 1994 WL 96690 at *14 (Lewis, J. dissenting). I believe this is particularly true in view of the fact that to a considerable degree, the defendants’ convictions rested upon the jury’s assessment of the credibility of Drizos and Smith. Moreover, I am not persuaded that the jury could not have been influenced by these improper remarks, to the prejudice of the defendants, regardless of the weight of additional evidence demonstrating their guilt.
For these reasons, I respectfully dissent.
MANSMANN, NYGAARD and McKEE, JJ., join in this dissent.