# Amicus Curiae Brief — Brecht v. Abrahamson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0310%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 619

## Text

IN THE

Supreme Court of the Gnited States
OCTOBER TERM, 1992

TODD A. BRECHT,
Petitioner,
vs.

GORDON A. ABRAHAMSON, Superintendent,
Dodge Correctional Institution,

Respondent.

On Writ of Certiorari to the
United States Court of Appeals for the Seventh Circuit

- BRIEF AMICUS CURIAE OF THE
CRIMINAL LEGAL FOUNDATION
INSU OF RESPONDENT

KENT S. SCHEIDEGGER
CHARLES L, HOBSON*
2131 J. Street (9581 er
Post Oiltice Bex 1199.
CA 95812

Sacramento,
Telephone: (916) 446-0345

Attorneys Amicus Curiae
Criminal fared Level Foundation

*Attorney of Record

“ss
q
F
é
3
q
:
°
4

> ’
a

\ a Pt gis ¥ © intial ee 2. ayy Z *

=) ee SE +} : *

wn mY x + om oa ~ ¢
_ ad So ghee

S

QUESTION PRESENTED

Should the standard for determining whether constitu-
tional error is harmless continue to be the reasonable
doubt test of Chapman v. California?

(i)

TABLE OF CONTENTS

Ee icceaeescecedvoncescscoccess i
cers cc kcsceeesecccccvccecese iv
ins ccc cegececoeececesess l
Summary of factsandcase ...............5sceeees a
Cine eeddovccccesevceccoeses 2
DC PCERb dd sbwbescessevcecccccececsocces 3
I
Stare decisis does not preclude a re-examination
ED 5 cc ccccsccssccccosccess 3
A. Stare decisis Te 4
B. The limits of stare decisis .... 2... 0.006600, 6
C. Chapman as precedent ..............6555. 9
Il
The reasonable doubt standard of Chapman should be
DUCE CN Se hash nesecceneccececscccece 12
A. Appellate courts and reasonable doubt ..... 12
B. The Chapman standard is too high ......... 13
C. Chapman is inconsistent ................. 19
D. Chapman is unnecessary ................. 20
itl
The standard of Kotteakos v. United States is the
proper standard for replacing Chapman .......... 23

(iii)

IV

What “error” there was, if any, is harmless

Os 2k EE re ee te

eee e ee &

TABLE OF AUTHORITIES
Cases

Arizona v. Fulminante, 113 L. Ed. 2d 302,

ED cccuswatearcccews secs 17, 26
Brecht v. Abrahamson, 944 F. 2d 1363

Ci ddacstvdandbanseeveesvaseds 2, 23
Bruton v. United States, 391 U. S. 123, 20 L. Ed. 2d 476,

EE cu iddédddcdsbanbiecnecuces 16
Burnet v. Coronado Oil & Gas Co., 285 U. S. 393,

76 L. Ed. 815, 52 S. Ct. 443 (1932) ............... 7
Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705,

SPE CE chduedvcsdeastanucestan Passim
Cohens v. Virginia, 6 Wheat. (19 U. S.) 264,

FS bn 606.0 b0-60.dd se beri cecendes 25
Delaware v. Van Arsdall, 475 U. S. 673, 89 L. Ed. 2d 674,

Ss ED ob k on cdeseetnasss ives 17, 29
Doggett v. United States, 120 L. Ed. 2d 520,

PE ED ca Bdedccdeeskqusbcsuess 18
Doyle v. Ohio, 426 U. S. 610, 49 L. Ed. 2d 91,

EE ode Gss onde bh Ghee nn sbaiee'ess 27
Estes v. Texas, 381 U.S. 532, 14 L. Ed. 2d 543,

PEPE cucccdbcccckhehececeschxko4 21
Fahy v. Connecticut, 375 U.S. 85, 11 L. Ed. 2d 171,

i socsncksdanseekeevnenes ees 19
Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

Pe CE acute veneers ceeedeliaes ets 20
Griffin v. California, 380 U. S. 609, 14 L. Ed. 2d 106,

oe Seer feiveuneesen 22

Harrington v. California, 395 U. S. 250, 23 L. Ed. 2d 284,
SUNS EE ab ab vevkeucedeucctuds 14, 16

Helvering v. Hallock, 309 U. S. 106, 84 L. Ed. 604,

cece ndhc scant wennae ess 4
Hertz v. Woodman, 218 U. S. 205, 54 L. Ed. 1001,
hai. ot ids de scewes aso 7

Hutchins v. Wainwright, 715 F. 2d 512 (CA11 19 5).. 20
In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

SG PEON vo cccccdcocevdscsnescs 19, 23
Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,

FP CED UeeES bbb es ccdcendcaene 12, 20
Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461,

PE DUPED ccc ccececcesceseceseessces Q
Kotteakos v. United States, 328 U. S. 750, 90 L. Ed. 1557,

66 S. Ct. 1239 (1946) ...... 9, 10, 14, 22, 23, 24, 25, 26
Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

es ED 6 ch one sees iexacden nse ess 20
Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

SPER TED Knvccccondesccanuvepecveces 5

McDonough Power Equipment, Inc. v. Greenwood,
464 U. S. 548, 78 L. Ed. 2d 663,

SP Ee EEE newcnsccccccvnsesessesecs 15
Milton v. Wainwright, 407 U. S. 371, 33 L. Ed. 2d 1,

Pe ED 6. 006.6606 66d eEdceceeresess 14
Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

PENG ED oc e see ccecccctvnnnecsoces 20
Patterson v. McLean Credit Union, 491 U. S. 164,

105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) ........ 7,8
Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. 2d 975,

PEED bp vccovecesccocesceceeesess 26

Payne v. Tennessee, 115 L. Ed. 2d 720,
Se Es TGEEEED Kcddctcnsvscvecccess 5,7, 11

Mt

Vil

Planned Parenthood v. Casey, 120 L. Ed. 2d 674,

Ty aa 4, 5, 6, 8,9, 11
Rose v. Clark, 478 U. S. 570, 92 L. Ed. 2d 460,

ee Oe 2 12
Rose v. Lundy, 455 U. S. 609, 71 L. Ed. 2d 379,

Raa 22, 26
Sawyer v. Smith, 111 L. Ed. 2d 193,

On eas 21
Schneble v. Florida, 405 U. S. 427, 31 L. Ed. 2d 340,

92 S. Ct. 1056 (1972)... 0... cece eee eee eee 16, 17

State v. Brecht, 421 N. W. 2d 96 (Wis. 1988) ... 2, 27, 28
Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

Se ED Soveccccasecncecedpeoues’s 21
United States v. Bryan, 339 U. S. 323, 94 L. Ed. 884,

WE Ge MP EEIUED cvceccocciesces eee ie ask 8
United States v. Hasting, 461 U. S. 499, 76 L. Ed. 2d 96,

ee Gnas voceseseosccave’s 12, 13, 28
United States v. Lane, 474 U. S. 438, 88 L. Ed. 2d 814,

Se Py PEP CUI ho ccc ccesesescs 23, 24, 25, 27
United States v. Mechanik, 475 U. S. 66, 89 L. Ed. 2d 50,

eos vos eGo aw ea wes ta 0 x 15
United States v. Lehder-Rivas, 955 F. 2d 1510

in a0t.ous sss sees Rwenneeieas autos 20
United States v. Scott, 437 U. S. 82, 57 L. Ed. 2d 65,

rik nce Javea neue pabe ene ee 8
United States v. Title Ins. & Trust Co., 265 U. S. 472,

68 L. Ed. 1110, 44S. Ct. 621 (1924) .............. 4

United States v. White, 124 F. 2d 181 (CA2 1941) ... 18

Vasquez v. .liilery, 474 U.S. 254, 88 L. Ed. 2d 598,
6 con ceccceennenanneess 4,5,6

Vill

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

Pe SE EOED bcc ccccnncedeswewgneees e's 18
Williams v. Kaiser, 323 U. S. 471, 89 L. Ed. 398,
ee EEE ococcuetGhecandeteatebdeses 21
Wolf v. Colorado, 338 U. S. 25, 93 L. Ed. 1782,
69 S. Ct. 1359 (1949) ...... Lcdicuseveeseeseves 23
Yates v. Evatt, 114 L. Ed. 2d 432,
See EEE ocheciudusvancusves 12, 1748
United States Constitution
a i a ee ees 10
United States Statutes
A A Perry eee ee eee 10, 23
Former 28 U. S. C. § 391, 40 Stat. 1181 ............ 24
Rules of Court
Federal Rule of Criminal Procedure 52(a) ......... 27
Treatises
J. Wigmore, Evidence (Tillers rev. 1983) ........... 14
R. Traynor, The Riddle of Harmless Error
PEE ssa ccebetneewoabun es 13, 14, 15, 19, 22, 25, 27
Miscellaneous

Douglas, Stare Decisis,

49 Cotem. L. Rev. 735 (1949) ..... ccc cccces 4,11
The Federalist No. 78 (A. Hamilton)
I bis o0bRbocccescccccceses 5, 6

Field, Assessing the Harmlessness of Federal
Constitutional Error—A Process in Need of a Rationale,
BaP Wie WO Me ROU. BO CEDFED oc ccc ccvcecccscces 15

Friendly, /s Innocence Irrelevant? Collateral
Altack on Criminal Judgments,

38 U. Chi. L. Rev. 142 (1970) .............., 19, 26
Goldberg, Harmless Error: Constitutional Sneak Thief,
71 J. Crim. L. & Criminology 421 (1980) ......... 16

Mouse, Harmless Constitutional Error:
The Implications of Chapman v. California,

Se DENN. E. TUOV. SEP CTPG) oc ccc scccvcccccees 20
Rehnquist, The Notion of a Living Constitution,

Pe Bs ry PU vc cvvccceceescsneses rae
Note, Harmful Use of Harmless Error in Criminal Cases,

64 Cornell L. Rev. 538 (1979) ............... iS, 21
Saltzburg, The Harm of Harmless Error,

ee ED coca nscncvicerccesses 23

IN THE

Supreme Court of the United States
OCTOBER TERM, 1992

TopbD A. BRECHT,
Petitioner,
vs.

GORDON A. ABRAHAMSON, Superintendent,
Dodge Correctional Institution,

Respondent.

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a
nonprofit California corporation organized to participate
in litigation relating to the criminal justice system as it
affects the public interest. CJLF seeks to bring the
constitutional rights of the victims and of society to rapid,
efficient, and reliable determination of guilt and swift
execution of punishment.

The present case involves the standard to be applied
to determine whether constitutional error in a particular
case is harmless. The current reasonable doubt standard
allows too many reversals for unimportant errors. The
resulting loss of valid conditions for unimportant errors is

1. CJLF has received written consent from both parties to file this brief.

contrary to the rights of victims and society which CJLF
was formed to advance.

SUMMARY OF FACTS AND CASE

Petitioner Brecht was convicted of first degree murder
for shooting and killing his brother-in-law, Roger Hart-
man. State v. Brecht, 421 N. W. 2d 96, 98 (Wis. 1988). At
trial, Brecht put on the defense that the shooting was an
accident. Amongst the evidence used to counter this
_ defense was evidence that on three separate -occasions
Brecht had the opportunity to raise his story about the
accidental shooting of his brother-in-law, but did not do
so. See id., at 100-101. Each of these opportunities
happened before Brecht’s Miranda warnings. See ibid.

During Brecht’s cross-examination and on closing
argument, the district attorney mentioned that Brecht had
never said to anyone before the triai that the shooting was
accidental. Brecht v. Abrahamson, 944 F. 2d 1363, 1365
(CA7 1991).

The Wisconsin Court of Appeal found the district
attorney's statemen's to be violations of Doyle v. Ohio.
Ibid. The Wiscoisin Supreme Court reinstated the
conviction, iinding Doyle error, but finding it harmless.
See id., at 1365-1366. The federal district court granted
Brecht’s habeas petition, again finding Doyle error and
concluding that it was not harmless. /d., at 1366. The
Seventh Circuit found Doyle error but held it harmless
under the siandard of Kotteakos v. United States. Id., at
1375-1376.

SUMMARY OF ARGUMENT

Stare decisis does not preclude a re-examination of this
Court’s decision in Chapman v. California. Stare decisis is
a policy designed to foster public respect for the law by
preserving expectations and advancing the notion of a

coherent body of precedent. Chapman is not insulated
from re-examination, because it invokes minimal reliance
interests and is a constitutional decision.

The reasonable doubt standard of Chapman should be
overruled. Reasonable doubt is a test appellate courts are
ill-suited to apply. It interferes with the jury’s findings,
and it requires reviewing courts to make an extensive
examination of the record.

The reasonable doubt standard is also too high.
Properly applied, it is a rule of near automatic reversal.
This can lead courts, including this one, to back away from
the Chapman standard. Such backtracking can only cause
confusion within the courts.

The time for retaining Chapman has passed. While
reasonable doubt may have been necessary when states
opposed federal authority, that is no longer the case.
State courts can be trusted with a less strict standard.

The proper standard for harmless constitutional error
is found in Kotteakos v. United States. The Kotteakos test
provides a proper, congressicnally-empoweredcompromise
between the need to prevent technical reversal and the
need to preserve the integrity of constitutional rules.

Whatever error, if any, that exists in the present case
is harmless. The allegedly harmful statements were no
more than trivial overstatements.

ARGUMENT

I. Stare decisis does not preclude a re-examination of
Chapman v. California.

The Seventh Circuit's decision below demonstrates the
weakness of the reasonable doubt standard of Chapman v.
California, 386 U. S. 18 (1967). While the court below
limited its holding to the collateral enforcement of
prophylactic rules, its reasoning may be carried much
further. If the Chapman standard may be questioned

under this limited circumstance, then a more general
reappraisal of the harmless error standard is in order.

The first step in appraising whether the Chapman
standard should be replaced is the doctrine of stare decisis.
Refusing to overturn a decision because of stare decisis can
be an act of judicial economy, avoiding a re-examination
of the case by sticking to the narrower grounds of stare
decisis.

But stare decisis is not a shield for the poorly reasoned
or contradictory decision. It “is a principal of policy, and
not a mechanical formula... .” Helvering v. Hallock, 309
U. S. 106, 119 (1940). Therefore, stare decisis should not
be viewed as a means of preserving particular decisions,
but as the method of preserving the policies the doctrine
serves.

A. Stare Decisis.

The fundamental purpose of stare decisis is to preserve
the rule of law. See Planned Parenthood v. Casey, 120
L. Ed. 2d 674, 700, 112 S. Ct. 2791, 2801 (1992) (“Casey”).
This allows people to rely upon the validity of decisions in
conducting their affairs, and it combats the belief that
decisions are the personal whims of judges. See Vasquez
v. Hillery, 474 U.S. 254, 265-266 (1986). By allowing
decisions to stay in place, a coherent body of precedent is
created. This establishes the rule of law.

Thus, the most important role of stare decisis is
preserving expectations. “Stare decisis provides some
moorings so that men may trade and arrange their affairs
with confidence. Stare decisis serves to take the capricious
element out of law and give stability to society.” Douglas,
Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).

If people did not know what to expect from the courts,
our lives, particularly in the commercial sphere, would
become much more difficult. Contracts could become
voided, the title could change hands, and money could be
lost if precedent is overruled. See, e.g., United States v.

Title Ins. & Trust Co., 265 U. S. 472, 486-487 (1924). Thus
stare decisis is strongest when property and contract rights
are involved. See Payne v. Tennessee, 115 L. Ed. 2d 720,
737, 111 S. Ct. 2597, 2610 (1991).

In criminal cases, different interests are involved.
While reliance is important in substantive criminal law, it
is not protected through stare decisis but rather by limita-
tions on retroactivity. See, e.g., Marks v. United States, 430
U. S. 188, 196-197 (1977). In criminal procedure, reliance
is almost entirely on the side of the prosecution, because
only the prosecution’s victories are subject to appellate or
collateral attack. When a defendant wins an acquittal
based upon an existing procedure, the Double Jeopardy
Clause prevents reversal. Only in rarest situations, such
as restrictions on immunized testimony, will a defendant’s
reliance interest be protected by stare decisis. Criminal
procedure precedent favoring criminal defendants involves
a more general interest in law. See Vasquez v. Hillery,
supra, 474 U. S., at 265-266.

This interest, like reliance, varies in strength with the
type of precedent. It is most important in those extremely
rare cases involving matters of intense national controver-
sy. In these cases, overruling even an obviously wrong
decision may be too expensive to the country.

The Judiciary is the “least dangerous” of the branches
because it has the least powers of compulsion, having “no
influence over either the sword or the purse....” See
The Federalist No. 78, at 465 (A. Hamilton) (Rossiter ed.
1961). Instead, the courts must rely on their persuasion
and prestige ‘o insure popular acquiescence to their
decisions. Thus the Court’s power “lies . . . in its legitima-
cy, a product of substance and perception that shows itself
in the people’s acceptance of the Judiciary as fit to
determine what the Nation’s law means and to declare
what it demands.” Casey, supra, 120 L. Ed. 2d, at 707, 112
S. Ct., at 2814.

In order to preserve its power of persuasion, at times
this Court will preserve some decisions it otherwise would
overrule. This doctrine has two applications. First, when
the number of decisions overturned has reached a satura-
tion point, “a point beyond which frequent overruling
would overtax the country’s belief in the Court’s good
faith.” /d., at 708, 112 S. Ct., at 2815.

The other circumstance involves those rare cases of
exceptional public controversy.

“Where, in the performance of its judicial duties, the
Court decides a case in such a way as to resolve an
intensely divisive controversy... its decision has a
dimension that the resolution of the normal case does
not carry. It is the dimension present whenever the
Court’s interpretation of the Constitution calls the
contending sides of a national controversy to end their
national division by accepting a common mandate
rooted in the Constitution.” Jbid.

In these cases, the need to maintain the public’s belief
in the rule of law can be overwhelming. When it resolves
such controversies, any backtracking by the Court can be
seen as “a breach of faith” with the rest of the public. /d.,
at 709, 112 S. Ct., at 2816. Such a result would cause
“profound and unnecessary damage to the Court’s legiti-
macy, and to the Nation’s commitment to the rule of law.”
Ibid.

Most decisions, however, are not so controversial. In
most cases, the rule of law is meant to assure society that
decisions are based in law, and not in proclivities of
individuals. See Vasquez v. Hillery, supra, 474 U. S., at
265.

B. The Limits of Stare Decisis.

While stare decisis is an important doctrine serving a
useful social policy, it does not have the same force as a
statute or the Constitution. The Judiciary’s role in our
society is as an interpreter of laws. See The Federalist No.

78, at 467 (A. Hamilton) (Rossiter ed. 1961). Therefore,
stare decisis, while respected, cannot deter this or any
other court from its ultimate duty of interpreting the law.
Stare decisis is the servant, not the master, of the law.

This Court has recognized that the doctrine does not
have the force of a rule of law and may be overridden
when appropriate. “Whether it [stare decisis| shall be
followed or departed from is a question entirely within the
discretion of the court... .” Hertz v. Woodman, 218 VU. S.
205, 212 (1910). While it will be followed in most cases,
this is only because usually “it is more important that the
applicable rule of law be settled than it be settled right.”
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406
(1932) (Brandeis, J., dissenting).

Perhaps the most important factor in limiting stare
decisis is the ability of other bodies to overturn this
Court's decisions. This Court is particularly reluctant to
overturn its own statutory interpretations, because Con-
gress “remains free to alter what [this Court has] done.”
Patterson v. McLean Credit Union, 491 U.S. 164, 173
(1989).

Constitutional cases are another matter. Because
““‘correction through legislative action is_ practically
impossible’ ” constitutional cases have much less prece-
dential force than statutory cases. Payne v. Tennessee, 115
L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2610 (1991) (quoting
Burnet, supra, 285 U. S., at 407 (Brandeis, J., dissenting));
see Patterson, supra, 491 U.S., at 172-173. Given the
necessary tension between our democratic ideals and
judicial review under the Constitution, see Rehnquist, The
Notion of a Living Constitution, 54 Tex. L. Rev. 693, 695-
696 (1976), this Court must be ready to re-examine its
constitutional decisions in order to maintain the democrat-
ic nature of our society.

Refusing to re-examine an incorrect opinion that the
public cannot overturn is corrosive to this Court's public
respect. Thus the decision to uphold the incorrectly

decided Lochner v. New York, 198 U.S. 45 (1905) until
1937 helped to damage this Court as a public institution.
See Planned Parenthood v. Casey, 120 L. Ed. 2d 674, 705,
112 S. Ct. 2791, 2813 (1992). “Of course it is embarrass-
ing to confess a blunder; it may prove even more embar-
rassing to adhere to it.” United States v. Bryan, 339 U. S.
323, 346 (1950) (Jackson, J., concurring).

This Court is also more willing to re-examine decisions
that have developed contradictions over time. Thus, this
Court will not allow stare decisis to preserve inconsistent
or difficult to administer decisions. See Patterson, supra,
491 U. S., at 173. Similarly, if the conditions that motivat-
ed a decision change, then there is good reason to over-
rule the prior decision. See Casey, supra, 120 L. Ed. 2d,
at 700, 112 S. Ct., at 2809.

Stare decisis is also weaker in procedural cases. These
decisions do not foster the same reliance interests. In
criminal procedure there is minimal reliance interest, and
nearly all of that is.on the side of the prosecution. See
part I, ante, at 5. Furthermore, changes in procedure
usually will not invoke the same public reaction that
occurs from changes in substantive law. Procedural rules
typically matter only to litigants. As most people are
spared the burden of litigation, changes in procedure are
unimportant to most. No person could or should plan his
life around potential litigation, especially criminal litiga-
tion. Unlike substantive decisions, rules of procedure
have little effect on our daily lives.

The fact that the stare decisis is not a “mechanical
rule” is demonstrated by the hierarchy within the doctrine.
While some decisions are virtually etched in stone, others
warrant more flexibility. For those cases less worthy of
stare decisis, “ ‘the process of trial and error so fruitful in
the physical sciences is appropriate also in the judicial
function.” ” United States v. Scott, 437 U. S. 82, 101 (1978)
(quoting Burnet, supra, 285 U. S., at 406-408 (Brandeis, J.,
dissenting)).

C. Chapman as Precedent.

When deciding whether stare decisis should preserve a
decision from re-examination, this Court “is customarily
informed by a series of prudential and pragmatic consider-
ations designed to test the consistency of overruling a
prior decision with the ideal of the rule of law, and to
gauge the respective costs of reaffirming and overruling a
prior case.” Planned Parenthood v. Casey, 120 L. Ed. 2d
674, 700, 112 S. Ct. 674, 2808 (1992). This involves a look
into the type of decision involved, the reliance interest it
invokes and whether the decision involves a divisive public
controversy. See part 1 A & B, ante, at 4-8. Under all of
these factors, Chapman v. California, 386 U. S. 18 (1967)
invokes-minimal protection from stare decisis.

Chapman invokes minimal reliance interest. The
reasonable doubt standard imposed by Chapman is not
something people will rely upon in their daily affairs.
Both sides in litigation have an interest in keeping the
proceedings free of constitutional error. There is a strong
incentive to avoid constitutional error favoring the other
side. It is the nature of litigation that parties should try to
correct error favoring their opponents at the trial level,
instead of waiting for the appeal. At best, it is a very risky
proposition to forego curing adverse constitutional error
at trial.

Many constitutional rights can be waived by a failure
to press for them at trial. See Johnson v. Zerbst, 304 U. S.
458, 464 (1938). Furthermore, the notion of wily trial
counsel allowing the opponent or the court to commit
error at trial, so that reversal may be obtained upon
appeal, is contrary to the premise behind harmless error
rule. See Kotteakos v. United States, 328 U. S. 750, 759-
760 (1946). Therefore, no litigant should allow adverse
constitutional error to go unchallenged at trial in the
hopes of obtaining a reversal. Any reliance on Chapman
to reverse on the basis of an error which could have been

10

corrected at trial is not legitimate reliance, and it is not
entitled to protection.

Chapman is also a constitutional decision. The
Chapman Court was unclear on its authority for its
decision. The most precise statement comes in the cryptic
passage:

“We have no hesitation in saying that the right of

these petitioners not to be punished for exercising

their Fifth and Fourteenth Amendment right to be
silent—expressly created by the Federal Constitution
itself—is a federal right which, in the absence of
appropriate congressional action, it is our responsibility
to protect by fashioning the necessary rule.” Chapman
v. California, 386 U. S. 18, 21 (1967).

An uncritical appraisal of this passage could lead an
observer to conclude that Chapman is no more than a rule
of court readily changed by Congress. This ignores the
constitutional basis of this Court’s authority in Chapman.
The only authorities for overriding state laws are the
Constitution, the laws enacted under it, and treaties. U. S.
Const. art. VI, § 2. Chapman did not invoke any statute
or treaty. The Chapman rule is either constitutionally
based or it is illegitimate. Cf. Chapman, supra, 386 UV. S.,
at 51 (Harlan, J., dissenting) (Chapman characterized as
a “new constitutional doctrine”).

Chapman's reference to the power of Congress to
legislate in this area is hollow. When Chapman was
decided, Congress had enacted a statute, 28 U.S.C. §
2111, that addressed harmless error. The Chapman Court
recognized that section 2111 did not discriminate between
constitutional and nonconstitutional error. 386 U. S., at
22. In Kotteakos v. United States, 328 U. S. 750, 764-765
(1946), this Court indicated that the predecessor to section
2111 might apply to constitutional error. Kotteakos also
established a standard for determining the harmlessness of
error under section 2111. /d., at 765.

11

Yet Chapman did not rely on section 2111 to establish
a harmless error rule. Its reference to the absence of
“appropriate congressional action” indicates that section
2111 did not give the Chapman Court the authority to
formulate a rule for harmless constitutional error. The
break with section 2111 is completed by the adoption of
the reasonable doubt standard, which is higher than the
one used in Kotteakos. As the Chapman Court ignored
the authority of section 2111 in this case, Chapman must
be a constitutional decision.

The only “congressional action” Chapman would deem
“appropriate” would be an act establishing the same high
standard created in Chapman. It could not mean the
lower standard supplied by section 2111 and Kotteakos. In
order to replace Chapman with a lower standard, either
Chapman will have to be overruled or the Constitution
must be amended. Therefore, like other constitutional
decisions, Chapman should be easier to modify or overrule
under stare decisis. See Payne v. Tennessee, 115 L. Ed. 2d
720, 737, 111 S. Ct. 2597, 2610 (1991).

Some constitutional decisions do warrant more stare
decisis protection than others. These involve particw arly
divisive national controversies that this Court’s decision
has substantially resolved. See Planned Parenthood v.
Casey, 120 L. Ed. 2d 674, 708, 112 S. Ct. 2791, 2815
(1992). Chapman is not such a case. While it is impor-
tant, the harmless error standard does not and is not likely
to divide the country. It involves the sort of technical
issue that the lay public is unlikely to understand well, if
at all. Cf. Douglas, supra, 49 Colum. L. Rev., at 737.
Changing Chapman will not erode the nation’s confidence
in the courts. Cf. Casey, supra, 120 L. Ed. 2d, at 708-709,
112 S. Ct., at 2815-2816.

12

Il. The reasonable doubt standard of Chapman
should be abandoned.

A. Appellate Courts and Reasonable Doubt.

The most evident problem with the Chapman standard
is that reasonable doubt is a test appellate courts are
particularly ill-suited to apply. Asking an appellate court
to find that an error was harmless beyond a reasonable
doubt comes perilously close to second-guessing the jury.
While the reasonable doubt question goes to harmless
error and not guilt, in practice, application of the Chap-
man standard is very similar to a re-examination of the
jury's finding. Determining whether the State has demon-
strated, beyond a reasonable doubt, that the error did not
contribute to defendant’s conviction frequently entails an
examination of the strength of the case under the reason-
able doubt standard.’ See United Siates v. Hasting, 461
U. S. 499, S09 (1983). “Where a reviewing court can find
that the record developed at trial establishes guilt beyond
a reasonable doubt, the interest in fairness has been
satisfied and the judgment should be affirmed.” Rose v.
Clark, 478 U. S. 570, 579 (1986).

Appellate courts are not well-suited to make this type
of finding. A reasonable doubt standard, if properly
applied, imposes an enormous burden on reviewing courts.
Diligent application of the reasonable doubt standard
necessarily entails substantial work. Frequently, detailed
examination of the entire record will be necessary to
ascertain whether there is reasonable doubt. Cf. Jackson
v. Virginia, 443 U. S. 307, 337 (1979) (Stevens, J., dissent-
ing). The reasonable doubt finding in Chapman can be
just as involved as the one for guilt.

2. In some cases the entire record cannot be used to justify a finding of

harmlessness. Where the error prevents the jury from considering some
evidence such as an erroneous presumption, then the evidence not
considered may not support a harmless error finding. See Yates v. Evatt,
114 L. Ed. 2d 432, 449-450, 111 S.Ct. 1884, 1893-1894 (1991).

13

“This Court is far too busy to be spending countless
hours reviewing trial transcripts in an effort to deter-
mine the likelihood that an error may have affected a
jury’s deliberations. In this case the parties did not
provide us with a printed appendix containing any
portion of the trial testimony or with any of the trial
exhibits that are discussed at some length in the
transcript. I have spent several hours reviewing the
one copy of the trial transcript that has been filed with
the Court. But I have not read all of its 1,013 pages,
and I have read only a few of the 450 pages of the
transcript of the suppression hearing. The task of
organizing ana digesting the testimony is a formidable
one.” United States v. Hasting, 461 U. S. 499, 516-517
(1983) (Sievens, J., concurring).

Finally, the Chapman standard’s placement of the
burden on the state is also contrary to good appellate
procedure. Burdens of proof and presumptions are trial,
not appellate tools. “These presumptions and burdens,
which expedite the trial process of recreating the facts that
lead to the litigation are unsuited to the appellate process
of determining whether an error was harmless.” R.
Traynor, The Riddle of Harmless Error 25-26 (1970). By
placing elements of the trial into an appellate process, the
Chapman standard blurs the line between the appellate
courts and the trial courts, further weakening the jury
process.

B. The Chapman Standard Is Too High.

Setting the proper standard for harmless error can be
tricky. Setting the standard too low can subvert the
Constitution. See Chapman v. California, 386 U. S. 18, 23-
24 (1967). Yet if the standard is too strict, then it can
create contempt for the standard and for the Constitution
it seeks to protect. Chapman errs too much towards this
latter problem.

14

The single greatest problem with Chapman is that the
standard, if diligently applied, requires near automatic
reversal. See R. Traynor, The Riddle of Harmless Error 43-
44 (1970). It is always difficult to overcome the test of
reasonable doubt, a standard “approaching certainty.” See
id., at 44.

The difficulty of passing the Chapman test is further
compounded by the nature of the inquiry being made.
Chapman does not involve the relatively straightforward
question put before the jury over whether the prosecution
proved beyond a reasonable doubt that defendant commit-
ted the charged crime. Chapman is less factual and more
psychological. It does not allow the reviewing court to
weigh the evidence itself, but instead requires it to gauge
the error’s impact on the mind of the average jury mem-
ber. See Harrington v. California, 395 U.S. 250, 254
(1969); Milton v. Wainwright, 407 U.S. 371, 377-378
(1972). It is difficult tobe nearly certain about such a
secondhand conclusion.

The difficulty of finding harmless error under Chap-
man runs contrary to the doctrine of harmless error. The
doctrine of harmless error came from our sense of justice.
The rule of per se reversal that was adopted throughout
much of this country was an extreme interpretation of an
English decision, which was so contrary to prior common
law precedent that Wigmore called it “heresy.” See 1 J.
Wigmore, Evidence § 21, at 888 (Tillers rev. 1983). This
led to great injustices as many cases, particularly criminal
convictions were reversed on technicalities. “All the
sentiment is thrown to weight the scales for the crimi-
nal—that is, not for the mere accused, who may be
assumed innocent, but for the man who upon the record
plainly appears to be the offender that the jury has
pronounced him to be.” /d., at 895. Similar sentiments
led the states and Congress to enact harmless error rules.
See Kotteakos v. United Siates, 328 U. S. 750, 759 (1946).

15

The sense of justice that motivates the harmless error
doctrine will fuel substantial resistance to needless restric-
tions on a court’s ability to find error harmless.

“If courts conscientiously apply the Chapman test, they
will usually find themselves compelled to balk at
declaring a belief that there is no reasonable possibility
that an error influenced the jury. The alternative is to
give the test lip service while tacitly discounting it.
The very severity of the test invites such discounting to
preclude well nigh automatic reversal.” Traynor,
supra, at 44 (emphasis in original); see also Field,
Assessing the Harmlessness of Federal Constitutional
Error—A Process in Need of a Rationale, 125 U. Pa. L.
Rev. 15, 61, n. 126 (1976).

Trials are costly for the parties, the jurors, and society.
See McDonough Power Equipment, Inc. v. Greenwood, 464
U.S. 548, 553 (1984). Retrials are even more costly.
Retrial of a reversed conviction requires parties, witnesses,
jurors, and courts “to repeat a trial that has once taken
place.” United States v. Mechanik, 475 U. S. 66, 72 (1986).
This can be particularly burdensome to the victims who
“may be asked to relive their disturbing experiences.”
Ibid. The passage of time makes retrial even costlier. As
memories fade and witnesses disappear, conviction may be
impossible on retrial. Even if there is a conviction, the
delay impedes society's interests in retribution and deter-
rence. /bid. “The doctrine of harmless error conserves
judicial resources by obviating retrial for trivial mistakes.”
Note, Harmful Use of Harmless Error in Criminal Cases, 64
Cornell L. Rev. 538, 565 (1979). As Chapman will offend
a court’s sense of economy as well as its sense of justice,
courts will be even more inclined to evade strict applica-
tion of the reasonable doubt standard.

The difficulty courts have with applying the Chapman
standard is demonstrated by this Court’s harmless error
cases. The Chapman Court criticized the California
harmless error rule because it relied too much upon other

16

“ ‘overwhelming evidence’ ” of guilt. Chapman, supra, 386
U. S., at 23. Instead of looking at whether defendant was
guilty in spite of the error, the Chapman test required
courts to decide whether the error contributed to the
comviction. /d., at 26. But in Harrington v. California,
supra, this Court began to abandon this central tenet of
Chapman.

Harrington was one white man who was tried with
three black men for attempted robbery and first degree
murder. 395 U.S., at 252. At trial, the confessions of
Harrington’s two nontestifyingcodefendants were admitted
in violation of Bruton v. United States, 391 U.S. 123
(1968). Harrington, supra, 395 U. S., at 252. Neither of
these confessions implicated Harrington by name, but each
referred to the fourth conspirator as the “ ‘white guy.’ ”
Id., at 253. The confessions were found harmless because
they were cumulative and “the case against Harrington
was so overwhelming... .” /d., at 254.

Although the majority claimed it was not departing
from Chapman, ibid., the dissent claimed that Chapman
had been overruled. See id., at 255 (Brennan, J., dissent-
ing). While Chapman may not have been dead, it was
certainly maimed. it is difficult to see how two confes-
sions stating that one white man and three black men
committed the crime did not, beyond a reasonable doubt,
contribute to the conviction of the one white man being
iried along with three black men. See id., at 257
(Brennan, J., dissenting); Goldberg, Harmless Error:
Constitutional Sneak Thief, 71 J. Crim. L. & Criminology
421, 427 (1980). This is not to say that Harrington reached
the wrong result. The evidence against Harrington was
overwhelming and consequentially the error was trivial in
the context of the trial. See Harrington, supra, 395 U. S.,
at 252-254. But the result cannot be reached without a
move away from Chapman.

In Schneble v. Florida, 405 U.S. 427 (1972), the
departure from Chapman continued. The strength of the

17

case without the error was the primary issue under
harmless error analysis. “In some cases the properly
admitted evidence of guilt is so overwhelming, and the
prejudicial effect [of the error] is so insignificant by
comparison” that the harmlessness of the error “is clear
beyond a reasonable doubt.” /d., at 430. While the
Schneble Court recognized the standard enunciated in
Chapman, it continued this Court’s move away from it.
“Thus, unless there is a reasonable possibility that the
improperly admitted evidence contributed to the convic-
tion, reversal is not required.” /d., at 432, compare with
Chapman, supra, 386 U. S., at 26 (placing burden of proof
on prosecution). Once again, this Court reached the
correct result; the Bruton error was unimportant in the
context of the rest of the case. See Schneble, supra, 405
U. S., at 430-431. But once again, this Court departed
from Chapman to reach the proper result.

The practice established in Harrington and Schneble,
looking at the strength of the prosecution’s case without
the error, is now the standard analysis. See, e.g., Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986); Arizona v.
Fulminante, 113 L. Ed. 2d 302, 323-325, 111 S. Ct. 1246,
1258-1260 (1991). If this Court has difficulty reconciling
Chapman with the principle of harmless error, then other
courts must have similar qualms.

In Yates v. Evatt, 114 L. Ed- 2d 432, 111 S. Ct. 1884
(1991) this Court made some effort to get closer to the
original jurisprudence of Chapman. The Yates Court
disavowed any notion drawn from this Court’s prior cases
that harmless error may be found in erroneous presump-
tion cases by examining the entire record. /d., at 449-450,
111 S. Ct., at 1893-1894. The Yates Court recognized that
Chapman's emphasis was on the error’s effect on the jury,
not on the strength of the case. Where an erroneous
presumption kept a jury from considering certain evidence,
that evidence cannot be used as a basis for harmless error.
Id., at 450-451, 111 S. Ct., at 1894-1895.

18

The Yates Court still gave the strength of the case
great importance. “To say that an error did not contrib-
ute to the verdict is, rather, to find that error unimportant
in relation to everything else the jury considered on the
issue in question as revealed in the record.” /d., at 449,
111 S. Ct, at 1893. The inference from Yates is that
where the jury did consider all evidence, then the entire
record may be used to overcome error. See id., at 450,
111 S.Ct, at 1894. Thus, sufficiently overwhelming
evidence should be able to overcome error even after
Yates, provided that the jury considered it.

The problem courts have with Chapman does not stem
from an unwillingness to enforce the Constitution, but
from the difficulty of applying the exacting reasonable
doubt standard to the very difficult question of the error’s
impact on jury deliberations. This Court has replaced this
question with the more factual, and thus less difficult
inquest into the strength of the case against the defendant.
While this test may“work its own justice, it is not an
acceptable solution. Courts should not say one thing and
do another. Chapman should be replaced with a lower
and more workable standard, one that more accurately
reflects what courts are really doing. Cf. Wainwright v.
Sykes, 433 U. S. 72, 94-95 (1977) (Stevens, J., concurring)
(Fay v. Noia standard should be replaced because courts
were not really using it).

“No judge in so extended a trial can avoid on occasion
rulings that on reflection he will see to have been wrong;
but, unless they cut off some really subs‘antial aspect of
the truth, or let in too distracting issues, they are not
important.” United States v. White, 124 F. 2d 181, 186
(CA2 1941) (Hand, J.).

Learned Hand’s admonition is even more important
now. In the last few decades constitutional law has
become immensely more complicated. See Doggett v.
United States, 120 L. Ed. 2d 520, 539, 112 S. Ct. 2686, 2699
(1992) (Thomas, J , dissenting). Instead of the few, simple

19

rules actually adopted in 1791, the Bill of Rights has been
expanded by decision into a “detailed Code of Criminal
Procedure, to which a new chapter is added every year.”
Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142, 155 (1970)
(footnote omitted). Chapman might have been appropri-
ate long ago when constitutional law was less complicated,
but today, where constitutional error is much more
pervasive, a less harsh standard is necessary.

C. Chapman Is Inconsistent.

The inconsistencies generated by Chapman come from
two main sources. First, the harshness of reasonable
doubt standard makes courts unwilling to apply it literally.
Therefore, subsequent cases have moved away from the
harsh test of Chapman. See part II B, ante, at 15-19.

The second source of conflict comes from the Chap-
man Court’s purported application of Fahy v. Connecticut,
375 U. S. 85 (1963). The Fahy Court found that constitu-
tional error prejudiced defendant because there was “a
reasonable possibility that the evidence complained of
might have contributed to the conviction.” Id., at 86-87
(emphasis added). The Chapman Court claimed to be
adopting this standard when it enunciated its reasonable
doubt standard, 386 U.S., at 24, but it is difficult to
reconcile these two standards.

The reasonable doubt standard is the highest one in
the law, “approaching certainty.” See R. Traynor, The
Riddle of Harmless Error 44 (1970). Fahy’s “reasonable
possibility” standard is more equivocal than Chapman.
Even when worded in the negative terms of Chapman
“whether there was no reasonable possibility that the error
contributed to the jury’s verdict” the Fahy standard is less
stringent. .

Reasonable doubt protects each individual from
criminal conviction unless the trier of fact is convinced of
the guilt “with utmost certainty.” In re Winship, 397 U. S.

20

358, 364 (1970). This is a “subjective state of near
certitude.” Jackson v. Virginia, 443 U. S. 307, 315 (1979).
When one deals in “possibility,” certainty is not necessarily
certain.

The difference between Fahy and Chapman would be
academic had Chapman formally abandoned Fahy. As the
Chapman Court did not, a court could claim to be apply-
ing the Chapman standard while applying the less rigorous
Fahy test. This has been done by the Eleventh Circuit. In
Hutchins v. Wainwright, 715 F. 2d 512, 517 (CA11 1983),
the court equated the Fahy test with the Chapman stan-
dard. As Chapman “purported merely to apply the
standard previously established in Fahy” the Hutchins
opinion was deemed acceptable. United States v. Lehder-
Rivas, 955 F. 2d 1510, 1517, n. 3 (CA11 1992). Until the
reasonable doubt standard of Chapman and its improper
reliance upon Fahy are removed, contradictions like this
will be possible and legal.

D. Chapman Is Unnecessary.

* Chapman v. California, 386 U.S. 18 (1967) was
decided in the middle of this Court's criminal procedure
revolution. Landmark cases such as Gideon v. Wainwright,
372 U. S. 335 (1963), Mapp v. Ohio, 367 U. S. 643 (1961),
and Miranda v. Arizona, 384 U. S. 436 (1966) had only
recently been decided. These and other revolutionary
changes in criminal procedure that occurred during the
1960’s caused some resentment in the state courts. Their
criminal cases were now subject to a much higher level of

*federal scrutiny than before. Harmless error could have
been a way for state courts to avoid this Court's decisions.
By forcing states to adopt a high standard for harmless
constitutjonal error, Chapman helped ensure that state
courts did not subvert the Constitution. Cf. Mouse,
Harmless Constitutional Error: The Implications of Chap-
man v. California, 53 Minn. L. Rev. 519, 530, n. 76 (1969)
(Chapman standard is stricter than most state tests).

a

21

Chapman was decided when federal authority was still
bitterly resisted. Only a few years earlier a state court of
general jurisdiction answered a federal constitutional
objection by saying “that the ‘case [was] not being tried
under the Federal Constitution.’” Estes v. Texas, 381
U. S. 532, 536 (1965). Furthermore, the “massive resis-
tance” of some states to the federal authority to enforce
civil rights was not yet dead. Therefore, the Chapman
Court may have had good reason to distrust some state
courts.

Fortunately, times have changed. These problems are
inconceivable today. The supremacy of federal law is
universally acknowledged and is routinely applied in the
State courts. See Stone v. Powell, 428 U. S. 465, 493, n. 35
(1976); Sawyer v. Smith, 111 L. Ed. 2d 193, 210-211, 110
S. Ct. 2822, 2831 (1990). State courts may interpret the
Constitution in ways later disapproved, but they no longer
refuse to follow it.

While the times have changed, Chapman has not. Its
overly restrictive standards still needlessly prevent harm-
less error findings. State courts are now as worthy to trust
with the Constitution as any federal court. They “are no
less under duty to observe the United States Constitution
than is this Court.” Williams v. Kaiser, 323 U. S. 471, 482
(1945) (Frankfurter, J., dissenting). Chapman should not
be retained out of any unwarranted fear of state courts.

The two other possible reasons for retaining the
Chapman standard do noi withstand scrutiny. The high
Chapman standard could be justified on the ground that
constitutional rights are more important than lesser rights,
and thus warrant a higher standard for harmless error.
This confuses the type of error with whether the error
actually was harmless. Nonconstitutional error can be just
as prejudicial as constitutional violations. See Note,
Harmful Use of Harmless Error in Constitutional Cases, 64
Cornell L. Rev. 538, 551 (1979). “Fundamental” and
“constitutional” ceased to be synonymous many, many

22

years ago. See Rose v. Lundy, 455 U. S. 509, 543, n. 8
(1982) (Stevens, J., dissenting).

Kotteakos and Chapman amply illustrate that constitu-
tional rules are not inherently more “important” than
nonconstitutional rules. The error in Kotteakos was in the
instruction on conspiracy. It went to the very heart of the
case. The trial court flatly and wrongly told the jury that
there was one large conspiracy, when in reality there were
many separate, smaller conspiracies. Kotteakos v. United
States, 328 U. S. 750, 767-768 (1946). Such an error raises
a grave possibility of conviction of an innocent person,
because the overt act of one conspirator may be imputed
to another. /d., at 771.

Chapman, in contrast, involves a rule with minimal
relation to accuracy of the verdict. The fact of defend-
ant’s refusal to testify is perfectly obvious to the jury.
Griffin v. California, 380 U. S. 609, 621 (1965) (Stewart, J.
dissenting, joined by White, J.) The inference drawn by
the former California rule is logically vaiid and had been
sanctioned by a host of authorities. /d., at 622. The
Griffin rule is based on an external policy unrelated to the
accuracy of the trial, and it is an extreme extrapolation of
that policy. To say that comment on failure to testify is a
higher order of error than grossly wrong instruction on the
nature of the crime would be patently absurd. Yet
Chapman assigns a higher harmless error standard without
regard to the importance of the error.

Furthermore, the high Chapman standard can work to
denigrate constitutional rights, to avoid the strictness of
the Chapman test. See part II C, anie, at 15. “Reversal
for error, regardless of its effect on the judgment, encour-
ages litigants to abuse the judicial process and bestirs the
public to ridicule it.” R. Traynor, The Riddle of Harmiess
Error 50 (1970).

The other reason given to support the Chapman test is
that the reasonable doubt standard is necessary to pre-
serve defendant's right to a finding of guilt beyond a

23

reasonable doubt under Jn re Winship, 397 U.S. 358
(1970). See Saltzburg, The Harm of Harmless Error, 59
Va. L. Rev. 988, 991 (1973). This rationale cannot save
Chapman. Winship was decided after Chapman, thus the
right announced six years later in Winship was an unlikely
motivation for the Chapman Court. Furthermore, the
Chapman standard actually interferes with jury decisions.
The high standard frequently requires a detailed examina-
tion of the trial record which creates an ever present
danger of appellate second-guessing of the jury’s verdict.
See part II A, ante, at 12-13.

Chapman’s reasonable doubt standard may have once
served a useful purpose. It no longer does. It is impracti-
cal to administer, too difficult to meet, and inconsistent
with other precedent. The Seventh Circuit has refused to
extend the Chapman standard to violations of prophylactic
rules on habeas corpus. Brecht v. Abrahamson, 944 F. 2d
1363, 1375 (CA7 1991). Amicus submits that it is better
to overrule an unprincipled decision than simply to refuse
to extend it. “Wisdom too often never comes, and so one
ought not to reject it merely because it comes too late.”
Wolf v. Colorado, 338 U. S. 25, 47 (1949) (Rutledge, J.,
dissenting).

Ill. The standard-of Kotteakos v. United States is the
proper standard for replacing Chapman.

Congress has mandated the proper standard for
determining harmless error in 28 U. S. C. § 2111.’ This
statute and the cases interpreting it, Kotteakos v. United
States, 328 U. S. 750 (1946) and United States v. Lane, 474
U. S. 438 (1986), provide a flexible, practical standard that

3. “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 nghts of the parties.”

24

strikes a proper balance between preserving the rule of
law and preventing unnecessary retrials.

The Kotteakos Court interpreted the predecessor to
section 2111, former 28 U. S. C. § 391, 40 Stat. 1181. The
Court set out to strike a proper balance, disregarding
unimportant error while maintaining the integrity of the
law. Kotteakos started by recognizing the purpose behind
harmless error. Before the harmless error rule took hold,
the frequency of reversal was so great “that criminal trial
became a game for sowing reversible error in the re-
cord... .” 328 U. S., at 759. Harmless error was meant
to end the game playing and close the loopholes. See id.,
at 759-760.

These principles spurred Congress to action, and this
Court kept them in mind when interpreting ‘the statute.
It recognized that hard and fast rules could not work well
in an area heavily dependent upon the facts of each case.
Id., at 762. The Court also understood appellate courts
could not determine guilt or innocence. /d., at 763. But
courts still had to assess the impact of the error on the
jury's decision. /d., at 764. The case by case nature of
harmless error also mitigated against any systematic use of
presumptions. The reviewing court had to look to the

particular error in the setting of the particular case before
it. See id., at 765-766.

From these principles the following standard emerged.

“The inquiry cannot be merely whether there was
enough to support the result, apart from the phase
affected by the error. It is rather, even so, whether the
error itself had substantial influence. If so, or if one is
left in grave doubt, the conviction cannot stand.” /d.,
at 765 (emphasis added). 5 Te

This standard has several advantages over any competi-
tors. It is a lower standard than the reasonable doubt
standard of Chapman. See Lane, supra, 474 U. S., at 460-
461 (Brennan, J., concurring in part and dissenting in
part). Therefore, it will avoid many of the problems

25

associated with the Chapman standard It will be less
burdensome to apply than Chapman, as reviewing courts
will not need to make the detailed inquiry of the record
necessary to remove all reasonable doubt. See part II A,
ante, at 12-13. Applying the less strict Kotteakos standard
will promote the social good of fewer reversals for unim-
portant errors and make courts more willing to apply this
Court’s harmless error standard. See part II C, ante, at
13-19. Thus, applying Kotteakos instead of Chapman may
actually lead to a greater respect for constitutional rights.
Cf. R. Traynor, The Riddle of Harmless Error 50 (1970).

Another crucial advantage of Kotteakos is that it comes
with congressional authority. Kotteakos only interpreted
the predecessor to section 2111. The difference between
section 2111 and former section 391 does not undermine
the Kotteakos test. If anything, the new statute provides
a less restrictive definition of harmless error. Section 2111
removes the qualifier “technical” from the statute, provid-
ing possibly greater scope for harmless error. See Lane,
supra, 474 U. S., at 448. In any event, Kotteakos supplies
the current standard for nonconstitutional harmless error
in federal courts. See id., at 448-449.

Some will object to Kotteakos on the ground that it was
never meant to apply to constitutional error. See Lane,
supra, 474 U.S., at 460-461 (Brennan, J., concurring in
part and dissenting in part). Kotteakos did not deal with
a constitutional error, but involved a variance between the
proof at trial and the charge in the indictment. See 328
U.S., at 755. Thus any statements in Kotteakos on
constitutional error are no more than dicta. See Cohens
v. Virginia, 6 Wheat. (19 U. S.) 264, 399-400 (1821). --

What the Kotteakos Court did say about constitutional
error was that if error had little effect on the jury “the
judgment should stand except perhaps where the departure
is from a constitutional norm or a specific command of
Congress.” Kotteakos, supra, 328 U. S., at 764-765 (em-
phasis added) (footnote omitted). The use of the equivo-

26

cal “perhaps” indicates Kotteakos could be used for
harmless constitutional error. Footnote 19, which came
after the word “norm” in the passage quoted above is no
more restrictive. It states that cases have been reversed
for “forced confessions... although on other evidence
guilt might be taken to be clear.” /d., at 765, n. 19. This
dealt with just one category of error that, until Arizona v.
Fulminante, 113 L. Ed. 2d 302, 331-332, 111 S. Ct. 1246,
1265-1266 (1991), had not been considered to be subject
to harmless error analysis.‘ See Payne v. Arkansas, 356
U. S. 560, 567-568 (1958).

Kotteakos did not need to dwell on constitutional error
because at that time constitutional law was much less
complicated. Today, however, the Constitution has
become a detailed code of criminal procedure. See
Friendly, Js Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142, 155-156
(1970). Many of these new rights now protected are far
from fundamental. See Rose v. Lundy, 455 U. S. 509, 543,
n. 8 (1982) (Stevens, J., dissenting). Constitutional law
needs the Kotteakos standard much more today than it did
in 1949. See part II D, ante, at 21.

The other reason not to adopt Kotteakos, that the
Constitution deserves more protection, is dealt with in
part II, ante, at 20-23, which dismisses this argument as a
reason for retaining the Chapman standard. This argu-
ment also denigrates the protection offered by Kotteakos.
As the Court below noted, it is strict enough to protect
federal statutes and rules in federal trials. See Pet. App.
12d. This Court has thought enough of Kotteakos to apply

4. ..nother possible objection, that adopting the Kotteakos standard would
make all constitutional rights subject to harmless error, is meritless. This
Court only needs to adopt the Kotteakos standard for those constitutional
errors that can be harmless. Those rights concerning “the framework
within which the trial proceeds,” Arizona v. Fulminante, 113 L. Ed. 2d
W2, 331, 111 S. Ct. 1246, 1965 (1991) need not be subject to harmless
error.

27

it to the harmless error rule of the Federal Rule of
Criminal Procedure 52(a). See Lane, supra, 474 U. S., at
449. Federal rules and statutes have not collapsed
because of Kotteakos, and neither will the Constitution.
Courts today will not use harmless error to avoid the
Constitution, see part II D, ante, at 20-23, and they should
be given a chance to apply this superior standard.

Adopting the Kotteakos rule has other incidental
benefits. It will lessen the number of standards for
harmless error, a desirable simplification of the law. See
Traynor, supra, at 48. It is also a standard federal courts
are used to applying, thus lessening the costs of transition
from Chapman. But the primary reason for adopting
Kotteakos is respect. Respect for the statute enacted by
Congress, respect for the courts that apply the complex
creature. our constitutional law has become, and respect
for trials that are fundamentally fair.

IV. What “error” there was, if any, is harmless.

The present case demonstrates the difficulty of apply-
ing the exacting standard of Chapman to alleged constitu-
tional error. At trial, three people testified that they had
conversations with petitioner and he never mentiqned
shooting Roger Hartman to any of them. See State v.
Brecht, 421 N. W. 2d 96, 100-101 (Wis. 1988). All of these -
statements occurred before any Miranda warnings. See
ibid. Admission of all three was clearly constitutional.
See id., at 102. Comment on Brecht’s failure to mention
the accident on each of these three occasions would have
been entirely proper.

The alleged violations of Doyle v. Ohio, 426 U. S. 610
(1976) occurred when the prosection made several broad
references to the fact that Brecht had never told his story
until the trial. The prosecutor did not point out that
Brecht had been silent after being given his Miranda
warnings at arraignment. See Brecht, supra, 421 N. W. 2d,

28

at 103. The inference that petitioner did not talk after
Miranda warnings should not constitute a Doyle violation.”

In Vovie, the only silence referred to by the prosecu-
tion was that which occurred after defendant's arrest and
Mirande warnings. See Doyle, 426 U. §., at 612-614. In
this case, the prosecution stated that’ Brecht had never
told his story until trial, he was not punishing petitioner
for heeding the Miranda warnings, but for his failure to
mention the shooting to people he talked to before the
Miranda warnings. It is unlikely that the prosecution even
cared about the post-Miranda silence. The testimony of
the three witnesses was much more damaging than
Brecht’s silence after his initial appearance. Had the
prosecutor simply changed the wording of the offending
Statements to refer only to the testimony of the three
witnesses, the statements would have lost none of their
relevance and been completely insulated from Doyle
attack. The present case involves a poor use of Doyle. It
was meant to protect Miranda's guarantee of silence, not
to correct a prosecutor's syntax.

The fact that courts have found that this violated Dovle
shows how technical constitutional criminal procedure has
become. The district attorney was cognizant of Doyle
error and took steps to avoid it. This must be why he
introduced evidence that Brecht had not been given his
Miranda warnings after the arrest. See Brecht, supra, 421
N. W. 2d, at 100-101. Yet the district attorney was
tripped up because of subsequent slight over-statements
constituting a few lines in a 900-page manuscript. Law as
technical as this needs a less demanding harmless error
standard.

5. The comment in this case is strongly analogous to that in United States
v. Hasting, 461 U. S. 499 (1983), where Justice Stevens found no Griffin
error. /d., at 512 (concurring in the judgment). The majority did not
consider that question properly before the Court, but noted that Justice
Stevens “may well be correct.” /d., at 506, n. 4.

29

Even if this was Doyle error, it was harmless, even
under Chapman. The fact that two of the four courts that
reviewed this case did not find it harmless speaks volumes
about the problems with Chapman. Whatever prejudice
that came from the inference of post-Miranda silence was
overwhelmed by the evidence of Brecht’s failure to bring
up his story during three separate conversations. Thus,
the alleged Doyle error was not prejudicial and therefore
harmless beyond a reasonable doubt.

Harmless error is supposed to “promote|} public
respect for the criminal process by focusing on the
underlying fairness of the trial rather than on the virtually
inevitable presence of immaterial error.” Delaware v. Van

. Arsdall, 475 U. S. 673, 681 (1986). In the present case,
“wo courts applying Chapman have allowed the prosecu-

tion to be tripped up in, at best, a hypertechnical violation
of Doyle. If Chapman can allow this to happen, then it
makes a mockery of harmless error.

CONCLUSION

The judgment of the Court of Appeals for the Seventh
Circuit should be affirmed.

September, 1992
Respectfully submitted,

KENT S. SCHEIDEGGER
CHARLES L. HOBSON*

Attorneys for Amicus Curiae
Criminal Jusiic Justice Legal Foundation

*Attorney of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0310%3A11. Public record. Not legal advice.