Petitioners were convicted following a California state criminal
trial during which the prosecutor, as then permitted by a state
constitutional provision, extensively commented on their failure to
testify. The trial judge also charged the jury that it could draw
adverse inferences from such failure. After the trial, but before
petitioners' appeal was considered, the state constitutional
provision was invalidated by
Griffin v. California,
380 U. S. 609.
Though admitting that petitioners had been denied a federal
constitutional right, the California Supreme Court, applying the
State Constitution's harmless error provision, upheld the
convictions.
Held:
1. This Court has jurisdiction to formulate a harmless error
rule that will protect a defendant's federal right under the Fifth
and Fourteenth Amendments to be free from state penalties for not
testifying in his criminal trial. Pp.
386 U. S.
20-21.
2. Before a constitutional error can be held to be harmless, the
court must be able to declare its belief that it was harmless
beyond a reasonable doubt. Pp.
386 U. S.
21-24.
3. The State in this case did not demonstrate beyond a
reasonable doubt that the prosecutor's repetitive comments to the
jury, and the trial court's instruction concerning the petitioners'
failure to testify did not contribute to their convictions. Pp.
386 U. S.
24-26.
63 Cal. 2d
178, 404 P.2d 209, reversed.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioners, Ruth Elizabeth Chapman and Thomas LeRoy Teale, were
convicted in a California state court
Page 386 U. S. 19
upon a charge that they robbed, kidnaped, and murdered a
bartender. She was sentenced to life imprisonment, and he to death.
At the time of the trial, Art., § 13, of the State's Constitution
provided that,
"in any criminal case, whether the defendant testifies or not,
his failure to explain or to deny by his testimony any evidence or
facts in the case against him may be commented upon by the court
and by counsel, and may be considered by the court or the
jury."
Both petitioners in this case chose not to testify at their
trial, and the State's attorney prosecuting them took full
advantage of his right under the State Constitution to comment upon
their failure to testify, filling his argument to the jury from
beginning to end with numerous references to their silence and
inferences of their guilt resulting therefrom. [
Footnote 1] The trial court also charged the jury
that it could draw adverse inferences from petitioners' failure to
testify. [
Footnote 2] Shortly
after the trial, but before petitioners' cases had been considered
on appeal by the California Supreme Court, this Court decided
Griffin v. California, 380 U. S. 609, in
which we held California's constitutional provision and practice
invalid on the ground that they put a penalty on the exercise of a
person's right not to be compelled to be a witness against himself,
guaranteed by the Fifth Amendment to the
Page 386 U. S. 20
United States Constitution and made applicable to California and
the other States by the Fourteenth Amendment.
See Malloy v.
Hogan, 378 U. S. 1. On
appeal, the State Supreme Court,
63 Cal. 2d
178, 404 P.2d 209, admitting that petitioners had been denied a
federal constitutional right by the comments on their silence,
nevertheless affirmed, applying the State Constitution's harmless
error provision, which forbids reversal unless "the court shall be
of the opinion that the error complained of has resulted in a
miscarriage of justice." [
Footnote
3] We granted certiorari limited to these questions:
"Where there is a violation of the rule of
Griffin v.
California, 380 U. S. 609, (1) can the error
be held to be harmless, and (2) if so, was the error harmless in
this case?"
383 U.S. 956-957.
In this Court, petitioners contend that both these questions are
federal ones to be decided under federal law; that, under federal
law, we should hold that denial of a federal constitutional right,
no matter how unimportant, should automatically result in reversal
of a conviction, without regard to whether the error is considered
harmless, and that, if wrong in this, the various comments on
petitioners' silence cannot, applying a federal standard, be
considered harmless here.
I
Before deciding the two questions here -- whether there can ever
be harmless constitutional error and whether the error here was
harmless -- we must first decide whether
Page 386 U. S. 21
state or federal law governs. The application of a state
harmless error rule is, of course, a state question where it
involves only errors of state procedure or state law. But the error
from which these petitioners suffered was a denial of rights
guaranteed against invasion by the Fifth and Fourteenth Amendments,
rights 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." [
Footnote 4] Whether 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. 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.
II
We are urged by petitioners to hold that all federal
constitutional errors, regardless of the facts and circumstances,
must always be deemed harmful. Such a holding,
Page 386 U. S. 22
as petitioners correctly point out, would require an automatic
reversal of their convictions and make further discussion
unnecessary. We decline to adopt any such rule. All 50 States have
harmless error statutes or rules, and the United States long ago,
through its Congress, established for its courts the rule that
judgments shall not be reversed for "errors or defects which do not
affect the substantial rights of the parties." 28 U.S.C. § 2111.
[
Footnote 5] None of these
rules, on its face, distinguishes between federal constitutional
errors and errors of state law or federal statutes and rules. All
of these rules, state or federal, serve a very useful purpose
insofar as they block setting aside convictions for small errors or
defects that have little, if any, likelihood of having changed the
result of the trial. We conclude 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, not requiring the
automatic reversal of the conviction.
III
In fashioning a harmless constitutional error rule, we must
recognize that harmless error rules can work very unfair and
mischievous results when, for example, highly important and
persuasive evidence, or argument, though legally forbidden, finds
its way into a trial in which the question of guilt or innocence is
a close one. What
Page 386 U. S. 23
harmless error rules all aim at is a rule that will save the
good in harmless error practices while avoiding the bad, so far as
possible.
The federal rule emphasizes "substantial rights," as do most
others. The California constitutional rule emphasizes "a
miscarriage of justice," [
Footnote
6] but the California courts have neutralized this to some
extent by emphasis, and perhaps overemphasis, upon the court's view
of "overwhelming evidence." [
Footnote 7] We prefer the approach of this Court in
deciding what was harmless error in our recent case of
Fahy v.
Connecticut, 375 U. S. 85. There
we said: "The question is whether there is a reasonable possibility
that the evidence complained of might have contributed to the
conviction."
Id. at
375 U. S. 86-87.
Although our prior cases have indicated that there are some
constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error, [
Footnote 8] this statement in
Fahy
itself belies any belief that all trial errors which violate the
Constitution automatically call for reversal. At the same time,
however, like the federal harmless error statute, it emphasizes an
intention not to treat as harmless those constitutional errors that
"affect substantial rights" of a party. An error in admitting
plainly relevant evidence which possibly influenced the jury
adversely to a litigant cannot, under
Fahy, be
conceived
Page 386 U. S. 24
of as harmless. Certainly error, constitutional error, in
illegally admitting highly prejudicial evidence or comments, casts
on someone other than the person prejudiced by it a burden to show
that it was harmless. It is for that reason that the original
common law harmless error rule put the burden on the beneficiary of
the error either to prove that there was no injury or to suffer a
reversal of his erroneously obtained judgment. [
Footnote 9] There is little, if any, difference
between our statement in
Fahy v. Connecticut about
"whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction" and
requiring the beneficiary of a constitutional error to prove beyond
a reasonable doubt that the error complained of did not contribute
to the verdict obtained. We therefore do no more than adhere to the
meaning of our
Fahy case when we hold, as we now do, 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. While appellate courts do not ordinarily have
the original task of applying such a test, [
Footnote 10] it is a familiar standard to all
courts, and we believe its adoption will provide a more workable
standard, although achieving the same result as that aimed at in
our
Fahy case.
IV
Applying the foregoing standard, we have no doubt that the error
in these cases was not harmless to petitioners. To reach this
conclusion, one need only glance at the prosecutorial comments
compiled from the record by petitioners' counsel and (with minor
omissions) set forth in the
386 U.S.
18app|>Appendix. The California Supreme Court
Page 386 U. S. 25
fairly summarized the extent of these comments as follows:
"Such comments went to the motives for the procurement and
handling of guns purchased by Mrs. Chapman, funds or the lack
thereof in Mr. Teale's possession immediately prior to the killing,
the amount of intoxicating liquors consumed by defendants at the
Spot Club and other taverns, the circumstances of the shooting in
the automobile and the removal of the victim's body therefrom, who
fired the fatal shots, why defendants used a false registration at
a motel shortly after the killing, the meaning of a letter written
by Mrs. Chapman several days after the killing, why Teale had a
loaded weapon in his possession when apprehended, the meaning of
statements made by Teale after his apprehension, why certain
clothing and articles of personal property were shipped by
defendants to Missouri, what clothing Mrs. Chapman wore at the time
of the killing, conflicting statements as to Mrs. Chapman's
whereabouts immediately preceding the killing and, generally, the
overall commission of the crime."
63 Cal. 2d at 196, 404 P.2d at 220. Thus, the state prosecutor's
argument and the trial judge's instruction to the jury continuously
and repeatedly impressed the jury that from the failure of
petitioners to testify, to all intents and purposes, the inferences
from the facts in evidence had to be drawn in favor of the State --
in short, that, by their silence, petitioners had served as
irrefutable witnesses against themselves. And though the case in
which this occurred presented a reasonably strong "circumstantial
web of evidence" against petitioners, 63 Cal. 2d at 197, 404 P.2d
at 220, it was also a case in which, absent the
constitutionally
Page 386 U. S. 26
forbidden comments, honest, fair-minded jurors might very well
have brought in not-guilty verdicts. Under these circumstances, it
is completely impossible for us to say that the State has
demonstrated, beyond a reasonable doubt, that the prosecutor's
comments and the trial judge's instruction did not contribute to
petitioners' convictions. Such a machine-gun repetition of a denial
of constitutional rights, designed and calculated to make
petitioners' version of the evidence worthless, can no more be
considered harmless than the introduction against a defendant of a
coerced confession.
See, e.g., Payne v. Arkansas,
356 U. S. 560.
Petitioners are entitled to a trial free from the pressure of
unconstitutional inferences.
Reversed and remanded.
|
386 U.S.
18app|
APPENDIX TO OPINION OF THE COURT
Argument and Comments by the Prosecutor on the
Failure of the Defendants to Take the Witness Stand
"Now, ladies and gentlemen, I don't know which one of these
weapons was purchased first, I don't know that it particularly
makes any difference, but, as you know, we have had no testimony at
all in that regard; in fact, I might add that the only person or
persons that could give testimony in that regard would be, of
course, the defendants themselves."
"
* * * *"
"Now this, there's no question about what this represents, or
for the record here, no question in your minds, this is not the
weapon that Ruth Elizabeth Chapman purchased in Reno, Nevada, on
October the 12th, 1962. I don't know where that weapon is, ladies
and gentlemen, and you don't know where it is, you've heard no
testimony from the stand at all, and once again, the only
Page 386 U. S. 27
person or persons that could tell us about where the original
.22 caliber Vestpocket is today would be one or the other of the
defendants, or both."
"
* * * *"
"This would indicate that there was no small struggle -- it
would indicate that the body, almost lifeless, was dragged or left
in some fashion which would cause a shirt or an article of clothing
to tear, one or the other. Once again, ladies and gentlemen, I
don't know, I wasn't out there, you were not out there. You heard
no testimony on the stand. The only individuals that could give you
that information would be the defendants, either one or both of
them, Thomas Leroy Teale and Ruth Elizabeth Chapman. And, of
course, you know that you have not heard from them."
"Now, I will comment throughout my entire opening argument to
you in reference to the fact that neither one of these defendants
has seen fit to go up, raise their right hand, take that witness
stand, tell you ladies and gentlemen of the jury exactly what did
occur, explain to you any facts or details within their knowledge
so that you would know. You would not have to -- by His Honor's
instructions, you can draw an adverse inference to any fact within
their knowledge that they couldn't testify to, and they have not
subjected themselves, either one or both, to cross-examination.
Now, that is -- so there is no question in your mind, once again
with reference to a defendant taking the stand, none -- you are --
you or I or anyone else is not required under our legal system in
these United States and under the Constitution, you cannot be made
to testify against yourself or for yourself, as far as that
goes."
"So, it is a Constitutional right, and both of these defendants
have seen fit to avail themselves of that Constitutional right, but
I say to you ladies and gentlemen, there are many things in this
case, and I will try to point
Page 386 U. S. 28
them out to you, at least some, probably not all, that these
defendants are in a position to take that stand and to testify
under oath and give you facts concerning. They have not seen fit to
avail themselves of that opportunity."
"
* * * *"
"Now whether or not Mr. Teale had any other money at the time or
was in the habit of concealing his money in different departments,
I don't know, and ladies and gentlemen, you don't know, because you
have not had any testimony from that witness stand, and the only
person that could clear this up for us ladies and gentlemen is the
defendant Thomas Leroy Teale. Ladies and gentlemen, he has not seen
fit to tell you about that. But certainly we know that bogus checks
are being written, and, as I recall, we know that -- I don't -- we
may infer, if you wish to believe there is an inference which Mr.
Teale could have cleared up, that that was all the money that he
had, and he didn't clear it up, so you may draw an adverse
inference from that, that that was all the money he had, or, in
fact, that he -- at that time, he was in desperate need of funds,
and you know that, through some kind of a discussion between these
two defendants in regard to Mr. Teale shooting dice, that this was
all he had."
"
* * * *"
"Now, ladies and gentlemen, in reference to the weapons being
purchased in Reno, Nevada on October 12th, you have heard, ladies
and gentlemen, no testimony, and you will recall clearly, you are
going to have some difficulty, you really are, in reference to what
is and what isn't evidence in this case, and, believe me, I have a
few comments to say on that a little later on, but, if you will
recall, as far as evidence is concerned of the truth of anything at
all, you don't have any evidence on why
Page 386 U. S. 29
these -- why these pistols were purchased. Why did Ruth
Elizabeth Chapman buy two weapons? Well, you do recall that she
told on one occasion that she had had a pistol stolen from her
vehicle, her automobile, when she was taking a little trip across
country, you remember that testimony, and you can rely on the
testimony that you actually hear, ladies and gentlemen, from the
stand. She told that, and, of course, you can only rely that she
told the gentleman that, that she had had another one stolen, and
so that she needed one to replace it. But why two, ladies and
gentlemen? You don't need two. If she is going to be attacked, she
wasn't going to use one in each hand, I assume, to defend herself,
and there is another area, ladies and gentlemen, besides this that
I mentioned to you before, that, since you have no testimony from
the stand, you must surmise from all facts and circumstances as to
the exact reason why they were purchased, because the only one in
this room that could tell you why these guns were purchased is
either one or both of the defendants. Certainly the defendant Ruth
Elizabeth Chapman could tell you, she could tell you under oath,
she could subject herself to cross-examination, and she could tell
you then and it would be evidence before you. Once again, she has
not chosen to do this. So any inference you may draw therefrom will
be an adverse inference under the circumstances, and under the
instructions of the Court. . . ."
"So, we know, ladies and gentlemen, that they had the motive, we
know that they had the means, we know that they had the
opportunity. We also know that they were at that scene, ladies and
gentlemen, they were with that man just a matter of minutes before
he was shot in the head three times with a gun similar to People's
Exhibit No. 12. Now if they weren't there, and I think the evidence
clearly shows they were, scientific evidence,
Page 386 U. S. 30
that we'll talk about a little later. Once again, why don't they
come up and raise their right hand and tell you about it?"
"To me, they are charged with serious crimes, ladies and
gentlemen. They can come up and testify, and then it will be
evidence for you to consider in this case. If they had just come up
and told you about this, because they were there. If they left the
Spot Club and just went on their way, well, of course, they didn't,
the evidence clearly shows they didn't, but you may draw the
adverse inference from their refusal to come before you and raise
that right hand and incidentally, of course, subject themselves to
cross-examination."
"
* * * *"
"I think it is not an unreasonable inference to infer at this
time if the defendants were drinking beer earlier in the evening in
Croce's, it's not unreasonable to infer they continued drinking the
same thing, therefore the two glasses remaining that had been
washed, but not put up were the defendants'. I don't know, it is an
inference, I wasn't there, we have had no testimony whatsoever as
to what they were drinking at the Spot Club, once again, neither
one of the defendants have seen their way clear to come up and tell
you what they were drinking if it was beer."
"
* * * *"
"So you can see that whichever one of these defendants shot him,
and once again, ladies and gentlemen, here is an area that I don't
know who shot him, and you don't know who shot him, because we have
had no testimony from that witness stand to tell you who shot him,
and the only two persons in this courtroom that could tell you
which one of them it was that shot him are the two defendants; but
once again, they have both decided that they will not get up and
raise their right
Page 386 U. S. 31
hand and testify in this regard and subject themselves to
cross-examination, so all we know is that one of them shot
him."
"
* * * *"
"We don't know the time here, it doesn't say. We don't have any
testimony, ladies and gentlemen, in this regard, and I might say
once again in reference to this last, the use of the name, T. L.
Rosenthal, Mr. and Mrs., we don't know why, ladies and gentlemen,
that name was used. We don't know why, ladies and gentlemen, that
UZV 155 -- was 156 originally on here. You don't know that, and I
don't, because we haven't had the testimony from the witness stand
on it. Now we know it is in the handwriting of Ruth Elizabeth
Chapman, and there is no question about that. She wrote it. It
could be evidence, ladies and gentlemen, for you. It could be
evidence as to why she wrote that name, and why that five was
changed to a six. We could have it. But we don't, because either
one or both of the defendants, neither one, have even seen fit to
take the stand and to testify in that regard. Then this would be
evidence that you can consider. But also ladies and gentlemen,
subject to taking the oath and subject to cross-examination."
"
* * * *"
"We see it here in Mountain View, the Mountain View Motel, the
name of Teale, but we don't have the testimony of the defendants,
and ladies and gentlemen, they are the only ones here in this case
that could get up there and tell you why they used a phony name two
hours after the crime and why they didn't put the correct license
down and whatever inference you draw you are permitted to draw
since they do not choose to tell you an adverse interest, and I
would say, ladies and gentlemen, that it is an adverse interest to
the defendants. It shows a consciousness of guilt."
"
* * * *
Page 386 U. S.
32
"
"Now, ladies and gentlemen, what is this -- first of all, 'I
thought I'd better let you know that Tom arrived here today and
we're going south tomorrow?' Now, what does that mean? Well, I
think without saying a great deal more about it that each one of
you can certainly infer as to what it very readily could mean,
especially if one has, in fact, committed a robbery and kidnapped
someone from the premises and that individual has ended up dead,
shot three times in the head. And further, ladies and gentlemen,
the only other thing I can say about it is this, who can really
tell you and who could have told you from evidence, from the
witness stand, what that letter meant? Well, the only one is Ruth
Elizabeth Chapman, ladies and gentlemen. If it didn't mean what you
can reasonably infer that it means, then I say, ladies and
gentlemen, she could have come up here and testified, gotten on the
witness chair. We have had many witnesses in this case, no one I
would assume more interested than Ruth Elizabeth Chapman, or the
codefendant, neither one took the stand. She in no way, nor has
there been any way, ladies and gentlemen, any kind of evidence that
has actually been admitted for the truth of the evidence, in no way
is there any evidence as to why she wrote that letter, and what she
meant by 'Tom is arriving today and we're going south.' Once again,
she did not choose to tell you. So, we may only infer, and this
will be, of course, you will have to, in your final analysis, draw
any inferences from that that you feel are appropriate and are
proper --"
"
* * * *"
"He was a fugitive from justice, and he knew he was a fugitive
from justice, and he never -- let's face it, there were four F.B.I.
agents, and these fellows are professional, and they know what they
are doing, and one of them had a gun out, and he never had an
opportunity
Page 386 U. S. 33
to use it, and none of us here will ever know from all the
testimony, from the actual testimony on the stand, why he had the
weapon with him fully loaded, because Mr. Teale has never taken the
stand in this case and testified for you. These things are things
only within his knowledge, ladies and gentlemen. If there is any
fact in this case of any relevancy of any importance, it is within
the knowledge of a defendant, and they chose not to take the stand
and tell you about it, where, incidentally, they are under oath and
can be cross-examined. You may draw an adverse inference from the
fact that they do not take it. I think the inference is very clear,
too, why they had this weapon here and why he never -- why it was
fully loaded. Remember there was never an opportunity to use it.
The weapon was purchased by Ruth Elizabeth Chapman. Now when he is
apprehended and fleeing from the State, he had it with him and it
was fully loaded. Once again, I don't know where the original is
here, and you know the only two that can tell us where that
is."
"Now you recall also that, when Mr. Basham took him back in, was
fingerprinting him, etc., he told him he was wanted in California
and no one mentioned anything about Lodi, and he said that he would
waive extradition, and he also did say he said, 'They will have a
hard time proving I was there.' And Teale himself did mention Lodi.
Well, I don't know what he meant by that statement. I certainly can
draw my own conclusion, and you sure will draw yours as the triers
of the facts and the judges of the facts, ladies and gentlemen, but
once again Mr. Teale did not take the stand and testify under oath
in this case, and Mr. Teale has not desired to take the stand and
explain what he meant by it. He didn't have to, of course, but once
again you can draw whatever inferences you may feel, and the law is
clear that
Page 386 U. S. 34
you may draw an adverse -- where a defendant does not explain
and he does not choose to take the stand and explain it to you, you
can draw an adverse inference."
"
* * * *"
"Photographs. You've seen them, ladies and gentlemen, but, as
you recall, the doctor now is pointing, and this is the picture of
the deceased, the back of his head, as to where he was shot in the
back of the head, you recall the other one as to where he was shot
in the side of the head, right here on the left in the general area
of where the glasses would be, I think it's a most reasonable
inference, ladies and gentlemen. Now, once again we have had no
testimony except what would seem clearly logical from the experts,
the way the body was found, where he'd been shot, what he'd been
shot with, and the position of the glasses in relation to the body
at the death scene, we had no other testimony. Certainly none from
the defendants in this case."
"
* * * *"
". . . Agent Gilmore has drawn and made some notations in
reference to where that blood was located, blood found on these
shoes. Now, all we know, ladies and gentlemen, as far as evidence
in this case is concerned, is that these shoes belonged to Ruth
Elizabeth Chapman, and they were in her possession when she was
apprehended in St. Joseph, Missouri, and why do I say that's all
you know? That's all you may take into consideration, ladies and
gentlemen, because we have no other testimony on this witness stand
in relation to any of these articles of clothing that are actually
admitted into evidence."
"
* * * *"
"You have two box lids, two of them, and you've heard the
questions concerning them, they would indicate that they were sent
to a Mrs. Howard Smith at 2206 Castle Avenue, St. Joseph, Missouri,
and I believe it was on
Page 386 U. S. 35
the 11th of October, says from Thomas Teale, 1105 Del Norte,
Eureka, California, they both say essentially the same thing,
10-11, there's no year, but I think we can surely infer it was in
1962, and apparently from Reno."
"Now, ladies and gentlemen, there's been a lot of talk,
suggestion, and whatever you want to call it, I'll call it a
smokescreen, in reference to these two lids that came off, and
we'll assume there was a box underneath them, I don't think there's
any question about that. Where have you ever heard from that
witness stand, ladies and gentlemen, what was ever in those boxes?
Now, you've heard some self-serving declarations that are not
admitted into evidence because they come through someone else who
in some fashion gets testimony before you, but no cross-examination
of the original party who is giving that kind of testimony, and you
can't consider it."
"
* * * *"
Thank you, Your Honor. Counsel has interjected himself into
this, and he'll have every opportunity to make his own comments,
and I'm sure he'll most adequately express himself when the time
comes. I'm telling you, ladies and gentlemen, that the only
evidence that you have is that you have two box tops. Now, he's
just suggested to you, so I'll answer this ahead of time, but the
evidence is clear that Mr. Sperling packed these boxes, but you
will recall Mr. Sperling was not at the original scene when they
were taken. Maybe it isn't unusual to infer there may have been
clothes, but what I'm getting at is this is what clothing? You
don't even know there was clothing in them when they were shipped.
It could have been other household articles. And even if we assume
it was clothing, and that's not unreasonable, because basically
these are the items we found and brought back with us to Lodi, we
don't know which clothing she shipped at this time. Couldn't this
be cleared up for us, though? It could be cleared up so
Page 386 U. S. 36
easily. Ruth Elizabeth Chapman is sitting right over here, she
is one of the defendants in this case, and she is the one certainly
if anyone, if anyone in this room, or in this state, knows what was
in those boxes, she is the one, but, once again, she did not take
the stand, raise her right hand, and tell you about that. She
didn't take the stand at all, ladies and gentlemen, she could have
come up and told us exactly what articles were sent, so you may
draw any inferences from that that you wish to, as long as they are
reasonable.
"
* * * *"
"Now, anything that -- is clearly, and I'm sure you know by now
and I don't have to repeat it too often, anything in this case that
Mr. Teale could get up here now, he don't have to get up here, but
all of the things that have been said in this trial and all of the
physical evidence and the testimony, he's right here in Court, and
could he not get up, and if there is anything to be said, he has
the opportunity to say it. Otherwise, you may draw the adverse
inference from the fact that he doesn't get up there and tell you
about it, and that, ladies and gentlemen, is his defense. Mr.
Fransen said in the beginning that what happened in this case is
not as the prosecution described it. That the facts will show an
entirely different version. Well, I haven't heard any facts, ladies
and gentlemen, that show an entirely different version."
"
* * * *"
"We went through a business with a -- dress. We held it up, and
then we pointed out the one that she's wearing now, and frankly,
ladies and gentlemen, the only one in the Court room that can tell
you whether or not it is the same dress is Ruth Elizabeth Chapman,
because you know from the evidence no one has ever had an
opportunity to examine that dress to see whether it has been
drycleaned, whether or not it was purchased -- when
Page 386 U. S. 37
it was purchased or the labels on it or anything else. All that
has been done in this thing is to wear a blue knit dress, ladies
and gentlemen, which is similar to the one that -- she, in fact,
apparently wore on that night."
"So, I suppose that just through the wearing of it, having it in
Court, it is hoped that you will draw something from it, which I
have heard no testimony on the stand, except that it looks like or
is similar to it. . . ."
"But what she told that doctor is not evidence in this case, and
yet you know that repeatedly, and over and over and over again, Mr.
Johnson in every way that he could, he would get the story again
before you. Now, why? You know why. He did it because he hopes that
you wouldn't forget it, although he could put it and make it
evidence in this case, which it is not, and if you put Ruth
Elizabeth Chapman up on that stand to testify, so it is one way of
doing, ladies and gentlemen, if you are going to be taken in by it,
indirectly what you can't do directly, because there is no other
way that he can get that thing before you without putting her up on
that stand."
"
* * * *"
"But she gave a story on the night of the 17th and early hours
of the 18th. She was in San Francisco. Now, why pick on that date
so specifically if you are not -- if not to beware of that date,
that you want to beware. Well, he says, 'You have given two
different stories. Do you have problems with blackouts or excessive
drinking,' and she says 'No.' And I tell you, ladies and gentlemen,
that anybody, and there is no evidence to the contrary in this
case, if you don't honestly remember what occurred and, you know,
you are in a situation where there is a fugitive warrant and you
have just been arrested and you in all honesty don't remember where
you were, that is the first thing that you are going to say. You're
not going to sit up and trump up excuses
Page 386 U. S. 38
and make out a story which you know to be a lie about specific
dates and times. And, ladies and gentlemen, there is no legal
evidence before you that it is anything to the contrary, because
the only one now that can come up and tell you has not seen fit to
do so."
"
* * * *"
". . . Mr. Johnson would have you believe that everything she
said was the truth. I think there are some instances that indicate
already -- I have indicated some, the purpose of the guns, two
different ideas there as to why they were purchased, but that is
the only legal purpose for that. So it's not evidence, although Mr.
Johnson again I say argued and referred to it as though it was. We
have no evidence from the lips of Mrs. Chapman. Now, as Mr.
Ferguson told you, it is their constitutional right, and I won't go
into that again, because I think he handled it very clearly as well
as the others, but that is within her right to do as she sees fit.
But, you can consider it for the purposes and under the
circumstances that Mr. Ferguson indicated a number of times."
"
* * * *"
"Originally, when Dr. Winkler examined her on the 31st, I
believe it was, of October, 1962, she told him that she had
forgotten after the first shot was fired, after the first shot was
fired. Since that time, what has happened? The amnesia, or
disassociative state, or disassociative reaction, which ever way
you want to look at it, psychiatrically or otherwise, seems to have
backed up from Dillard Road back up to the Spot Club, back up down
Highway 99 south to just outside of Croce's, and by the time we get
through cross-examining Dr. Sheuerman, it even backed in to
Croce's. A vague area. Very interesting. We could have put it on,
put the statement in. It's evidence? It's not. Again, the sanctity
and
Page 386 U. S. 39
worthiness of evidence would have to come from her lips, hers on
the stand here. Why? Here again, because witnesses would be under
oath again, and I repeat, and I repeat for emphasis, they would
have to be under oath subject to cross-examination before your very
eyes so that you could evaluate it. Oh yes. She said this and she
said that. Who said it? Who said it? Ruth Elizabeth Chapman on the
stand? No. Dr. Sheuerman said that she said it. Dr. Winkler said
that she said. Mr. Johnson said that she said. Well, it's an
interesting thing that the only witnesses who weren't here, or
weren't on the stand to be cross-examined, the only witnesses who
are alive today to the perpetration of these offenses, are these
two defendants. That's all. They don't have to take the stand.
That's been gone over many times, but you know it would be a fine
thing, very fine deed if persons who perpetrated offenses gave a
story, put a story on by somebody else, have somebody else speak
for you -- wouldn't it? It would be a very interesting thing. You
would never have the benefit of evaluating their credibility. This
is what Mr. Johnson would have you believe that we should have
done. Monday morning quarterbacking. And I submit to you -- you
know, you -- you have heard much about lawyers being referred to as
'mouthpieces.' It's actually a very rare thing, really, that that
type of appellation is applicable to lawyers really. But, I think
you have seen a demonstration here, and I'm not saying it in
rancor, not anything of it at all, because this is a demonstration
where actually Ruth Elizabeth Chapman is speaking through Mr.
Johnson. A 'mouthpiece.'"
"
* * * *"
"Maybe there is another reasonable one, other than the fact that
it was Adcock's blood, because all three who were in the car had
type A. Maybe there is, but
Page 386 U. S. 40
you haven't heard it. You haven't heard any reasonable
explanation of that. So you can draw an adverse inference that it
was Billy Dean Adcock's blood. . . ."
"Mr. Johnson said these several things which I will go over
again. The evidence showed here that she bought two guns for Teale.
What evidence? No witness on the stand got up there and said
specifically under oath, and the only one that could do it would be
Elizabeth Chapman herself. This is hearsay, what she told somebody
else for the sole purpose of determining what her state of mind was
at the time. It's not evidence. There's some evidence from her own
lips through Dennis Mack as to the reason she bought the gun, which
is different than what she said otherwise. Mr. Johnson said the
evidence shows there was an argument in Fresno. Here again, I would
say, 'What evidence?' The next one -- there are only two people
there to that argument, and the only way it would be evidence or
testimony in this case would be if either one or both of them got
up there and said there was an argument. They chose not to do it.
You can draw an adverse inference that that being within their
knowledge, that they could explain, whether it was or not. You can
draw an inference that it wasn't the type of argument that Mr.
Johnson claims the evidence shows, because the evidence doesn't
show that at all."
"
* * * *"
"So far as the motive is concerned for the murder in a
perpetration of a robbery, the motive was set, to gain for their
own desires and lusts and so forth, to gain from it. It was a crime
of gain, and perhaps another thing too, in deciding -- we don't
know who pulled the trigger -- we may never know. The defendants
haven't indicated it, except through Teale in one -- Mr. Vowell's
testimony, as to what Mr. Teale said, but that is not
admissible
Page 386 U. S. 41
against, and you shouldn't consider it against, Ruth Elizabeth
Chapman, but maybe the circumstances of who pulled the trigger
might have been a factor that might have been important to you.
Only two people know. They didn't tell you. That is the way they
want to proceed. But nonetheless, you can consider that too."
"
* * * *"
"So, in considering what happened here as to why this person was
killed, you see you can weigh these things and decide what the
motive was. You might have had some help in deciding this very
difficult task from the very only two people remaining who were at
the scene, but, in their best judgment, they didn't choose to get
up and tell you about it, which you certainly can consider that
fact that they did not in the light of using your reason, as I have
indicated here too."
"
* * * *"
"You know that somebody shot Billy Dean Adcock, and you know
that it was either -- it was one or even both of these defendants,
in view of your verdict, but which one, you don't know. Now this is
something that perhaps might have been of help to you in deciding
what punishment to mete out, whether both should be punished
equally in this case, or whether there should be some distinction
between the two. It might have been helpful to know who pulled that
trigger, for if it was Ruth Elizabeth Chapman, you could well
deduce that it was either her intoxication or emotional stress or a
jealousy of Teale, or anger, and a lot of things other than the
motive to destroy a witness; whereas, with respect to Mr. Teale, it
would seem to be a logical thing to conclude that he wanted to get
rid of the only eyewitness. Differences there, you see. But you
don't know. You don't know whether they did it in consort
[
sic]. You don't know that as far as pulling the trigger.
But this is
Page 386 U. S. 42
a factor which has not been brought to light, and you can
consider that factor which has not been, from the standpoint there
have been two people that might have explained that."
"
* * * *"
"I have gone into the statement here and why it hasn't been
presented. If you are going to decide things such as character and
sympathy, the law says you may take into consideration, how can you
do it by a statement? Now, we are talking about this phase of the
case. This now. You like to know that persons get -- if there is
something about their character that they can tell you, or
something about their background that they can tell you, you like
to hear it from them, because you have a very serious and difficult
task, and the fact that they chose to rest upon whatever evidence
there is here in the case in chief is something that you can
consider in deciding whether or not they had been fair with
you."
"This is the chance that they take by not having taken the
stand."
[
Footnote 1]
Excerpts of the prosecutor's argument are reproduced in the
386 U.S.
18app|>Appendix to this opinion.
[
Footnote 2]
The trial judge charged the jury:
"It is a constitutional right of a defendant in a criminal trial
that he may not be compelled to testify. Thus, whether or not he
does testify rests entirely on his own decision. As to any evidence
or facts against him which the defendant can reasonably be expected
to deny or explain because of facts within his knowledge, if he
does not testify or if, though he does testify, he fails to deny or
explain such evidence, the jury may take that failure into
consideration as tending to indicate the truth of such evidence and
as indicating that, among the inferences that may be reasonably
drawn therefrom, those unfavorable to the defendant are the more
probable. . . ."
[
Footnote 3]
Cal.Const., Art. VI, § 4 1/2:
"No judgment shall be set aside, or new trial granted, in any
case on the ground of misdirection of the jury, or of the improper
admission or rejection of evidence, or for any error as to any
matter of pleading, or for any error as to any matter of procedure,
unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice."
[
Footnote 4]
"If they [the first ten amendments] are incorporated into the
Constitution, independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every assumption of power
in the Legislative or Executive; they will be naturally led to
resist every encroachment upon rights expressly stipulated for in
the Constitution by the declaration of rights."
1 Annals of Cong. 439 (1789).
[
Footnote 5]
28 U.S.C. § 2111 provides:
"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."
Fed.Rule Crim.Proc. 52(a) provides:
"Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded."
See also Fed.Rule Civ.Proc. 61.
[
Footnote 6]
The California statutory rule, like the federal rule, provides
that,
"[a]fter hearing the appeal, the Court must give judgment
without regard to technical errors or defects, or to exceptions,
which do not affect the substantial rights of the parties."
Cal.Pen.Code § 1258.
[
Footnote 7]
The California Supreme Court in this case did not find a
"miscarriage of justice" as to petitioner Teale, because it found
from "other substantial evidence, [that] the proof of his guilt
must be deemed overwhelming." 63 Cal. 2d at 197, 404 P.2d at
220.
[
Footnote 8]
See, e.g., Payne v. Arkansas, 356 U.
S. 560 (coerced confession);
Gideon v.
Wainwright, 372 U. S. 335
(right to counsel);
Tumey v. Ohio, 273 U.
S. 510 (impartial judge).
[
Footnote 9]
See generally 1 Wigmore, Evidence § 21 (3d
ed.1940).
[
Footnote 10]
Cf. Woodby v. Immigration Service, 385 U.
S. 276.
MR. JUSTICE STEWART, concurring in the result.
In devising a harmless error rule for violations of federal
constitutional rights, both the Court and the dissent proceed as if
the question were one of first impression. But, in a long line of
cases involving a variety of constitutional claims in both state
and federal prosecutions, this Court has steadfastly rejected any
notion that constitutional violations might be disregarded on the
ground that they were "harmless." Illustrations of the principle
are legion.
When involuntary confessions have been introduced at trial, the
Court has always reversed convictions regardless of other evidence
of guilt. As we stated in
Lynumn v. Illirois, 372 U.
S. 528,
372 U. S. 537,
the argument that the error in admitting such a confession "was a
harmless one . . . is an impermissible doctrine." That
conclusion
Page 386 U. S. 43
has been accorded consistent recognition by this Court.
Malinski v. New York, 324 U. S. 401,
324 U. S. 404;
Payne v. Arkansas, 356 U. S. 560,
356 U. S. 568;
Spano v. New York, 360 U. S. 315,
360 U. S. 324;
Haynes v. Washington, 373 U. S. 503,
373 U. S.
518-519;
Jackson. v. Denno, 378 U.
S. 368,
378 U. S.
376-377. Even when the confession is completely
"unnecessary" to the conviction, the defendant is entitled to "a
new trial free of constitutional infirmity."
Haynes v.
Washington, supra, at
373 U. S. 518-519. [
Footnote
2/1]
When a defendant has been denied counsel at trial, we have
refused to consider claims that this constitutional error might
have been harmless.
"The right to have the assistance of counsel is too fundamental
and absolute to allow courts to indulge in nice calculations as to
the amount of prejudice arising from its denial."
Glasser v. United States, 315 U. S.
60,
315 U. S. 76.
That, indeed, was the whole point of
Gideon v. Wainwright,
372 U. S. 335,
overruling
Betts v. Brady, 316 U.
S. 455. Even before trial, when counsel has not been
provided at a critical stage, "we do not stop to determine whether
prejudice resulted."
Hamilton v. Alabama, 368 U. S.
52,
368 U. S. 55;
White v. Maryland, 373 U. S. 59,
373 U. S.
60.
A conviction must be reversed if the trial judge's remuneration
is based on a scheme giving him a financial interest in the result,
even if no particular prejudice is shown and even if the defendant
was clearly guilty.
Tumey v. Ohio, 273 U.
S. 510,
273 U. S. 535.
To try a defendant in a community that has been exposed to
publicity highly
Page 386 U. S. 44
adverse to the defendant is
per se ground for reversal
of his conviction; no showing need be made that the jurors were, in
fact, prejudiced against him.
Sheppard v. Maxwell,
384 U. S. 333,
384 U. S.
351-352;
cf. Rideau v. Louisiana, 373 U.
S. 723,
373 U. S. 727.
See also Estes v. Texas, 381 U. S. 532,
381 U. S.
542-544;
381 U. S.
562-564 (WARREN, C.J., concurring);
381 U. S.
593-594 (HARLAN, J., concurring).
When a jury is instructed in an unconstitutional presumption,
the conviction must be overturned though there was ample evidence
apart from the presumption to sustain the verdict.
Bollenbach
v. United States, 326 U. S. 607,
326 U. S.
614-615. Reversal is required when a conviction may have
been rested on a constitutionally impermissible ground despite the
fact that there was a valid alternative ground on which the
conviction could have been sustained.
Stromberg v.
California, 283 U. S. 359,
283 U. S.
367-368;
Williams v. North Carolina,
317 U. S. 287,
317 U. S. 292.
In a long line of cases leading up to and including
Whitus v.
Georgia, 385 U. S. 545, it
has never been suggested that reversal of convictions because of
purposeful discrimination in the selection of grand and petit
jurors turns on any showing of prejudice to the defendant.
To be sure, constitutional rights are not fungible goods. The
differing values which they represent and protect may make a
harmless error rule appropriate for one type of constitutional
error and not for another. I would not foreclose the possibility
that a harmless error rule might appropriately be applied to some
constitutional violations. [
Footnote
2/2] Indeed, one source of my disagreement with the
Page 386 U. S. 45
Court's opinion is its implicit assumption that the same
harmless error rule should apply indiscriminately to all
constitutional violations.
But I see no reason to break with settled precedent in this
case, and promulgate a novel rule of harmless error applicable to
clear violations of
Griffin v. California, 380 U.
S. 609. [
Footnote 2/3]
The adoption of any harmless error rule, whether the one proposed
by the Court, or by the dissent, or some other rule, commits this
Court to a case-by-case examination to determine the extent to
which we think unconstitutional comment on a defendant's failure to
testify influenced the outcome of a particular trial. This
burdensome obligation is one that we here are hardly qualified to
discharge.
A rule of automatic reversal would seem best calculated to
prevent clear violations of
Griffin v. California. This
case is one in which the trial occurred before the
Griffin
decision but which was not final on appeal until afterwards, so the
doctrine of prospectivity announced in
Tehan v. Shott,
382 U. S. 406,
does not reach it. But the number of such cases is strictly
limited. Prosecutors are unlikely to indulge in clear violations of
Griffin in the future, and, if they do, I see no reason
why the sanction of reversal should not be the result.
For these reasons I believe it inappropriate to inquire whether
the violation of
Griffin v. California that occurred in
this case was harmless by any standard, and accordingly I concur in
the reversal of the judgment.
[
Footnote 2/1]
None of these decisions suggests that the rejection of a
harmless error rule turns on any unique evidentiary impact that
confessions may have.
Haynes v. Washington, 373 U.
S. 503, specifically contradicts that notion. In
addition to the confession found inadmissible by this Court, the
defendant in
Haynes had given two prior confessions, the
admissibility of which was not disputed, and "substantial
independent evidence" of guilt existed. The Court accepted the
prosecution's contention that the inadmissible confession played
little if any role in the conviction.
[
Footnote 2/2]
For example, quite different considerations are involved when
evidence is introduced which was obtained in violation of the
Fourth and Fourteenth Amendments. The exclusionary rule in that
context balances the desirability of deterring objectionable police
conduct against the undesirability of excluding relevant and
reliable evidence. The resolution of these values with interests of
judicial economy might well dictate a harmless error rule for such
violations.
Cf. Fahy v. Connecticut, 375 U. S.
85,
375 U. S. 92
(dissenting opinion).
[
Footnote 2/3]
Earlier this Term, in
O'Connor v. Ohio, 385 U. S.
92, we reversed a conviction on the basis of
Griffin
v. California, 380 U. S. 609,
without pausing to consider whether the comment on the defendant's
silence might have been harmless error under the rule the Court
announces today or any other harmless error rule.
MR. JUSTICE HARLAN, dissenting.
The Court today holds that the harmlessness of a trial error in
a state criminal prosecution, such error
Page 386 U. S. 46
resulting from the allowance of prosecutorial comment barred by
the Fourteenth Amendment, must be determined under a "necessary
rule" of federal law. The Court imposes a revised version of the
standard utilized in
Fahy v. Connecticut, 375 U. S.
85, on state appellate courts not because the
Constitution requires that particular standard, but because the
Court prefers it.
My understanding of our federal system, and my view of the
rationale and function of harmless error rules and their status
under the Fourteenth Amendment, lead me to a very different
conclusion. I would hold that a state appellate court's reasonable
application of a constitutionally proper state harmless error rule
to sustain a state conviction constitutes an independent and
adequate state ground of judgment. Believing this to be the
situation here, I would dismiss the writ.
Viator v. Stone,
336 U.S. 948.
I
The key to the Court's opinion can, I think, be found in its
statement that it 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,"
and that, "in the absence of appropriate congressional action,"
the Court must fashion protective rules. The harmless error rule
now established flows from what is seemingly regarded as a power
inherent in the Court's constitutional responsibilities, rather
than from the Constitution itself. The Court appears to acknowledge
that other harmless error formulations would be constitutionally
permissible. It certainly indicates that Congress, for example,
could impose a different formulation. [
Footnote 3/1]
I regard the Court's assumption of what amounts to a general
supervisory power over the trial of federal
Page 386 U. S. 47
constitutional issues in state courts as a startling
constitutional development that is wholly out of keeping with our
federal system and completely unsupported by the Fourteenth
Amendment, where the source of such a power must be found. The
Fourteenth Amendment guarantees individuals against invasions by
the States of fundamental rights,
Palko v. Connecticut,
302 U. S. 319,
and, under more recent decisions of this Court, some of the
specifics of the Bill of Rights, as well.
See, e.g., in
the context of this case,
Malloy v. Hogan, 378 U. S.
1;
Griffin v. California, 380 U.
S. 609. It thus serves as a limitation on the actions of
the States, and lodges in this Court the same power over state
"laws, rules, and remedies" as the Court has always had over the
"laws, rules, and remedies" created by Congress. This power was
classically described by Chief Justice Marshall in
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 178:
"So if a law be in opposition to the constitution; if both the
law and the constitution apply to a particular case, so that the
court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the constitution,
disregarding the law; the court must determine which of these
conflicting rules governs the case. . . ."
Nothing in the Fourteenth Amendment purports to give federal
courts supervisory powers, in the affirmative sense of
McNabb
v. United States, 318 U. S. 332,
over state courts.
See id. at
318 U. S.
340-341. Moreover, where the constitutional power
described by Marshall has been invoked, the Court has always been
especially reluctant to interfere with state procedural practices.
See Spencer v. Texas, 385 U. S. 554.
From the beginning of the federal Union, state courts have had
power to decide issues of federal law and to formulate
"authoritative laws, rules, and remedies" for the trial of those
issues. The primary responsibility for the trial of state criminal
cases still rests
Page 386 U. S. 48
upon the States, and the only constitutional limitation upon
these trials is that the laws, rules, and remedies applied must
meet constitutional requirements. If they do not, this Court may
hold them invalid. The Court has no power, however, to declare
which of many admittedly constitutional alternatives a State may
choose. [
Footnote 3/2] To impose
uniform national requirements when alternatives are
constitutionally permissible would destroy that opportunity for
broad experimentation which is the genius of our federal
system.
Even assuming that the Court has the power to fashion remedies
and procedures binding on state courts for the protection of
particular constitutional rights, I could not agree that a general
harmless error rule falls into that category. The harmless error
rules now utilized by all the States and in the federal judicial
system are the product of judicial reform early in this century.
Previously, most American appellate courts, concerned about the
harshness of criminal penalties, followed the rule imposed on
English courts through the efforts of Baron Parke and held that any
error of substance required a reversal of conviction.
See
Orfield, Criminal Appeals in America 190. The reform movement, led
by authorities like Roscoe Pound and Learned Hand, resulted in
allowing courts to discontinue
Page 386 U. S. 49
using reversal as a "necessary" remedy for particular errors and
"to substitute judgment for the automatic application of rules. . .
." 4 Barron, Federal Practice and Procedure § 2571, at 438. This
Court summarized the need for that development in the leading case
of
Kotteakos v. United States, 328 U.
S. 750,
328 U. S.
759:
"§ 269 [a federal harmless error provision] and similar state
legislation grew out of widespread and deep conviction over the
general course of appellate review in American criminal causes.
This was shortly, as one trial judge put it after § 269 had become
law, that courts of review 'tower above the trials of criminal
cases as impregnable citadels of technicality.' . . . [C]riminal
trial became a game for sowing reversible error in the record."
Holding, as is done today, that a special harmless error rule is
a necessary remedy for a particular kind of error revives the
unfortunate idea that appellate courts must act on particular
errors, rather than decide on reversal by an evaluation of the
entire proceeding to determine whether the cause as a whole has
been determined according to properly applicable law. In this case,
California has recognized the impropriety of the trial comment here
involved, and has given clear direction to state trial courts for
the future. Certainly this is the appropriate remedy for the
constitutional error committed. The challenged decision has no
direct relation to federal constitutional provisions; rather it is
an analysis of the question whether this admittedly improper
comment had any significant impact on the outcome of the trial. In
Kotteakos, supra, this Court described the "material
factors" in harmless error determinations as
"the character of the proceeding, what is at stake upon its
outcome, and the relation of the error asserted to casting the
balance for decision on the case as a whole. . . ."
Id.
Page 386 U. S. 50
at
328 U. S. 762.
None of these factors has any relation to substantive
constitutional provisions, and I think the Court errs in conceiving
of an application of harmless error rules as a remedy designed to
safeguard particular constitutional rights. [
Footnote 3/3] It seems clear to me that harmless error
rules concern, instead, the fundamental integrity of the judicial
proceedings as a whole.
As indicated above, I am of the opinion that the validity of a
challenged state harmless error rule itself is a federal
constitutional question. Harmless error rules may, as the Court
says, "work very unfair and mischievous results." And just concern
can be expressed over the possibility that state harmless error
decisions may result in the dilution of new constitutional
doctrines because of state hostility to them. However, the record
is barren of any showing that the California courts, which have
been in the vanguard in the development of individual safeguards in
criminal trials, [
Footnote 3/4] are
using their harmless error rule to destroy or dilute constitutional
guarantees. If the contrary were the case and the harmless error
rule itself were shown to have resulted in a course of convictions
significantly influenced by constitutionally impermissible factors,
I think it clear that constitutional due process could not
countenance the continued application
Page 386 U. S. 51
of the rule. [
Footnote 3/5] And
individual applications of a permissible rule would still be
subject to scrutiny as to the tenability of the independent and
adequate state ground.
See Thompson v. Louisville,
362 U. S. 199;
Terre Haute & Indianapolis Railroad Co. v. Indiana ex rel.
Ketcham, 194 U. S. 579;
Note, The Untenable Nonfederal Ground in the Supreme Court, 74
Harv.L.Rev. 1375.
I thus see no need for this new constitutional doctrine.
[
Footnote 3/6] Decision of this
case should turn instead on the answers to two questions: is the
California harmless error provision consistent with the guarantee
of fundamental fairness embodied in the Due Process Clause of the
Fourteenth Amendment?
See Palko v. Connecticut, supra. Was
its application in this instance by the California Supreme Court a
reasonable one, or was the rule applied arbitrarily to evade the
underlying constitutional mandate of fundamental fairness? These
issues will now be considered.
II
The California harmless error rule is incorporated in that
State's constitution. It was first adopted by a vote of the people
in 1911, and readopted as part of the revised constitution in 1966.
While its language allows reversal only where there has been a
"miscarriage of justice," a long course of judicial decisions has
shaped the rule in a manner which cannot be ignored. California
courts
Page 386 U. S. 52
will not allow a conviction based upon an improperly obtained
confession to stand.
See, e.g., People v.
Dorado, 62 Cal. 2d
338, 398 P.2d 361;
People v. Sears, 62 Cal. 2d
737, 401 P.2d 938. Nor will the fact that sufficient evidence
to support the conviction is present absent the tainted evidence
preclude a reversal.
See, e.g., People v.
Patubo, 9 Cal. 2d 537,
71 P.2d 270;
People v. Mahoney, 201 Cal. 618, 258 P. 607.
And reversal will be required when the tainted evidence is
introduced in intentional violation of constitutional standards.
See People v. Sarazzawski, 27 Cal. 2d
7, 161 P.2d 934. Thus, the California rule and the "federal
rule" today declared applicable to state adjudication are parallel
in these special instances [
Footnote
3/7] and their divergence, if any,
Page 386 U. S. 53
arises from the general formulation found in the opinions of the
California Supreme Court.
In
People v. Watson, 46 Cal. 2d
818, 299 .2d 243, the California Supreme Court undertook a
general discussion of the application of the state harmless error
rule. It declared that the "final test" was
"the 'opinion' of the reviewing court, in the sense of its
belief or conviction, as to the effect of the error, and that,
ordinarily, where the result appears just, and it further appears
that such result would have been reached if the error had not been
committed, a reversal will not be ordered."
Reversal would be required only when "it is reasonably probable
that a result more favorable to the appealing party would have been
reached," and this judgment
"must necessarily be based upon reasonable probabilities, rather
than upon mere possibilities; otherwise, the entire purpose of the
constitutional provision would be defeated."
46.Cal.2d at 835-837, 299 P.2d at 254-255. This formulation may
sound somewhat different from that announced today, but, on closer
analysis, the distinction between probability and possibility
becomes essentially esoteric. In fact, California courts have at
times equated the California standard with the standard utilized by
this Court in
Fahy v. Connecticut, supra. See, e.g.,
People v. Jacobson, 63 Cal. 2d
319, 331, 405 P.2d 555, 563.
Similarly, members of this Court have used a variety of verbal
formulae in deciding questions of harmless error in federal cases,
ranging from today's "reasonable doubt" standard to the ability to
"say with fair assurance . . . that the jury was not substantially
swayed. . . ."
Fiswick v. United States, 329 U.
S. 211,
329 U. S. 218.
And the circuit courts have been equally varied in their
expressions.
Page 386 U. S. 54
See United States v. Brown, 79 F.2d 321;
United
States v. Feinberg, 140 F.2d 592;
United States v.
McMaster, 343 F.2d 176.
Against this background, the California rule can hardly be said
to be out of keeping with fundamental fairness, and I see no reason
for striking it down on its face as a violation of the guarantee of
"due process." [
Footnote 3/8]
III
A summary of the evidence introduced against the petitioners and
the events of the trial will make it apparent that the application
of the California rule in this case was not an unreasonable one.
California courts have not hesitated to declare that comment has
caused a miscarriage of justice when that conclusion has been
warranted by the circumstances,
see, e.g., People v.
Keller, 234 Cal. App.
2d 395, 44 Cal. Rptr. 432;
People v.
Sigal, 235 Cal. App.
2d 449, 45 Cal. Rptr 481, but the posture of this case
minimized the possible impact of the comment.
Petitioners were tried for the murder of a night club bartender
in the course of a robbery of the club. The State established that
petitioners were the last customers remaining in the club on the
night of the murder. Three people with descriptions matching those
of Chapman, Teale, and the victim were seen leaving the club
together. The club had been ransacked, and its condition indicated
that the victim had been forced out of it. He was later shot from
close range with a .22-caliber weapon and left beside a country
road. It was shown that Chapman had purchased a similar weapon five
days before the murder, and this weapon was in Teale's possession
when he was arrested. Blood matching the type of the victim was
found on the floormat of the vehicle in which Chapman and Teale had
been traveling. Other scientific testimony
Page 386 U. S. 55
established that the victim had been in petitioners' car. Blood
(untypable) was found on Chapman's clothes, and blood matching the
victim's was found on her shoes. Similar evidence connected Teale
with the murder.
After his arrest, Teale made admissions, amounting almost to a
full confession, to a fellow prisoner, and these were introduced
against him. The jury was cautioned to disregard them as against
Chapman. Petitioners pleaded not guilty, but offered no defense on
the merits. The only defense witness was a Dr. Sheuerman, who was
called by Chapman in an effort to establish a defense of lack of
capacity to form the requisite intent because of "disassociative
reaction."
The prosecutor's comment on petitioners' failure to explain away
or challenge the evidence presented against them was admittedly
extensive. [
Footnote 3/9] The
California Supreme Court found it harmless error for a number of
reasons. First the court noted the convincing and unchallenged
evidence presented by the State. It next observed that the jurors
were certain to take notice of petitioners' silence whether or not
there was comment, since the evidence itself cried for an
explanation. I think this point crucial, since it seems to me that
this Court has confused the impact of petitioners' silence on the
jury with the impact of the prosecution's comment upon that
silence. The added impact of that comment would seem marginal in a
case of this type, where the jury must inevitably look to
petitioners for an explanation of the innuendo of the real evidence
and, in Teale's case, of his damaging admissions. Finally the
California Supreme Court noted that Chapman, against whom the
Page 386 U. S. 56
evidence was less strong, had keyed her defense to evidence of
her mental defect, a subject upon which the comment had not
touched. From this discriminating analysis, it was concluded that
another result was not "reasonably probable" absent the erroneous
comments.
I cannot see how this resolution can be thought other than a
reasonable, and therefore constitutional, application of the
California harmless error rule.
IV
When we consider how little is empirically known about the
workings of a jury,
see Kalven & Zeisel, The American
Jury,
passim, it seems to me highly inappropriate for this
Court to presume to take upon itself the power to pass directly on
the correctness of impact evaluations coming from 50 different
jurisdictions. Juries must invariably react differently to
particular items of evidence because of local predispositions and
experience factors. The state courts, manned by local judges aware
of and in touch with the special factors affecting local criminal
trials, seem the best, and the constitutionally required, final
authority for ruling on the effect of the admission of inadmissible
evidence in state criminal proceedings, absent the application of a
fundamentally unfair rule or any unreasonable application of a
proper rule manifesting a purpose to defeat federal constitutional
rights. Once it appears that neither of these factors is present in
a state "harmless constitutional error" decision, federal judicial
responsibility should be at an end. This decision, however,
encompasses much more. It imposes on this Court, in cases coming
here directly from state courts, and on the lower federal courts,
in cases arising on habeas corpus, the duty of determining for
themselves whether a constitutional error was harmless. In all but
insubstantial instances, this will entail a
de novo
assessment of the entire state trial record.
Page 386 U. S. 57
For one who believes that, among the constitutional values which
contribute to the preservation of our free society, none ranks
higher than the principles of federalism, and that this Court's
responsibility for keeping such principles intact is no less than
its responsibility for maintaining particular constitutional
rights, the doctrine announced today is a most disturbing one. It
cuts sharply into the finality of state criminal processes; it bids
fair to place an unnecessary substantial burden of work on the
federal courts, and it opens the door to further excursions by the
federal judiciary into state judicial domains. I venture to hope
that, as time goes on, this new doctrine, even in its present
manifestation, will be found to have been strictly contained, still
more that it will not be pushed to its logical extremes.
I respectfully dissent.
[
Footnote 3/1]
For myself, I intimate no view on congressional power with
respect to state courts in this regard.
[
Footnote 3/2]
Cases in which lower federal courts, acting under the authority
of the Fourteenth Amendment, as expanded by this Court's decision
in
Reynolds v. Sims, 377 U. S. 533,
have promulgated their own reapportionment plans may superficially
be thought to support such a power.
E.g., Reynolds v. State
Election Board, 233 F.
Supp. 323. But such cases are quite apart from the present one,
because they arise from a situation where some positive
constitutional action is a necessity, and thus require the exercise
of special equity powers. Here, the ordinary remedy of striking
down unconstitutional harmless error rules and applications is
sufficient to deal with any problem that may arise. There is no
necessity for a State to have a harmless error rule at all.
[
Footnote 3/3]
The Court indeed recognizes, as does my Brother STEWART in his
concurring opinion, that errors of constitutional dimension can be
harmless, a proposition supported by ample precedent.
See
Snyder v. Massachusetts, 291 U. S. 97;
Motes v. United States, 178 U. S. 458;
Haines v. United States, 188 F.2d 546;
United States
v. Donnelly, 179 F.2d 227. Presumably all errors in the
federal courts will continue to be evaluated under the single
standard of 28 U.S.C. § 2111 as interpreted today. Certainly there
is nothing in the substantive provisions of the Bill of Rights
which suggests any standard for assessing the impact of their
violation.
[
Footnote 3/4]
See, e.g., People v. Cahan, 44 Cal. 2d
434, 282 P.2d 905;
People v. Dorado, 62 Cal. 2d
338, 398 P.2d 361.
[
Footnote 3/5]
It is clear enough that this is not the rationale that the Court
is employing. The Court would leave California free to apply its
harmless error rule to errors of state law, and must thus consider
the rule itself consistent with constitutional due process. This
leaves the anomalous situation where the impact of a particular
piece of evidence is to be assessed by a different "constitutional"
standard depending only on whether state law or federal
constitutional law barred its admittance.
[
Footnote 3/6]
Fahy v. Connecticut, 375 U. S. 85,
should not be deemed dispositive on such a far-reaching matter,
which was entirely passed over in the Court's opinion in that
case.
[
Footnote 3/7]
Some special limitations on harmless error have always been
respected by this Court, and seem to me essential to the
fundamental fairness guaranteed by the Due Process Clauses of the
Fifth and Fourteenth Amendments. These limitations stem from what I
perceive as two distinct considerations. The first is a recognition
that particular types of error have an effect which is so
devastating or inherently indeterminate that, as a matter of law,
they cannot reasonably be found harmless.
E.g., Payne v.
Arkansas, 356 U. S. 560
(confessions);
see Fahy v. Connecticut, supra, at
375 U. S. 95
(dissenting opinion of HARLAN, J.);
cf. Bollenbach v. United
States, 326 U. S. 607
(independently sufficient evidence). The second is a recognition
that certain types of official misbehavior require reversal simply
because society cannot tolerate giving final effect to a judgment
tainted with such intentional misconduct.
E.g., Berger v.
United States, 295 U. S. 78
(prosecutorial misconduct). Although they have never been viewed in
this light, I would see violations of
Gideon v.
Wainwright, 372 U. S. 335, as
falling in the first category, and violations of
Tumey v.
Ohio, 273 U. S. 510, as
falling in the second. However, as I understand my Brother
STEWART's opinion concurring in the result, he would read all such
limitations into the content of the Due Process Clause and limit
the application of harmless error rules with respect to
constitutional errors to an undefined category of instances. I
think it preferable to resolve these special problems from an
analysis of the nature of the error involved, rather than by an
attempt to discover limitations in the policy underlying the
substantive constitutional provisions. The latter course seems to
me to blur analysis and lead to distinction by fiat among equally
specific constitutional guarantees.
[
Footnote 3/8]
The rule was upheld by the Ninth Circuit in
Sampsell v.
California, 191 F.2d 721, against an attack on its
constitutionality.
[
Footnote 3/9]
The decision in
Griffin v. California, 380 U.
S. 609, was not announced until after the trial of the
case. Hence, the trial was conducted according to what was, at the
time, constitutional California law. No implication of
prosecutorial misconduct can be drawn from these circumstances.