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    U.S. Supreme Court Reports

    CHAPMAN v. CALIFORNIA, 386 U.S. 18 (1967)

    CHAPMAN v. CALIFORNIA, 386 U.S. 18 (1967) 386 U.S. 18

    CHAPMAN ET AL. v. CALIFORNIA.
    CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
    No. 95.
    Argued December 7-8, 1966.
    Decided February 20, 1967.

    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:

    63 Cal. 2d 178, 404 P.2d 209, reversed.

    Morris Lavine argued the cause and filed briefs for petitioners.

    Arlo E. Smith, Chief Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General.

    MR. JUSTICE BLACK delivered the opinion of the Court.

    Petitioners, Ruth Elizabeth Chapman and Thomas LeRoy Teale, were convicted in a California state court [386 U.S. 18, 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. I, 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. 1 The trial court also charged the jury that it could draw adverse inferences from petitioners' failure to testify. 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 [386 U.S. 18, 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." 3 We granted certiorari limited to these questions:

    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 [386 U.S. 18, 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." 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, [386 U.S. 18, 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. 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 [386 U.S. 18, 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," 6 but the California courts have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court's view of " over-whelming evidence." 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 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, 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 [386 U.S. 18, 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. 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, 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 Appendix. The California Supreme Court [386 U.S. 18, 25]   fairly summarized the extent of these comments as follows:

    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 [386 U.S. 18, 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.

    . . . . .

    [ Footnote 1 ] Excerpts of the prosecutor's argument are reproduced in the 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. Illinois, 372 U.S. 528, 537 , the argument that the error in admitting such a confession " was a harmless one . . . is an impermissible doctrine." That conclusion [386 U.S. 18, 43]   has been accorded consistent recognition by this Court. Malinski v. New York, 324 U.S. 401, 404 ; Payne v. Arkansas, 356 U.S. 560, 568 ; Spano v. New York, 360 U.S. 315, 324 ; Haynes v. Washington, 373 U.S. 503, 518 -519; Jackson v. Denno, 378 U.S. 368, 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 518-519. 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, 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, 55 ; White v. Maryland, 373 U.S. 59, 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, 535 . To try a defendant in a community that has been exposed to publicity highly [386 U.S. 18, 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, 351 -352; cf. Rideau v. Louisiana, 373 U.S. 723, 727 . See also Estes v. Texas, 381 U.S. 532, 542 -544; 562-564 (WARREN, C. J., concurring); 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, 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, 367 -368; Williams v. North Carolina, 317 U.S. 287, 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. 2 Indeed, one source of my disagreement with the [386 U.S. 18, 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 . 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 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 ] 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, 92 (dissenting opinion).

    [ Footnote 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 [386 U.S. 18, 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. 1  

    I regard the Court's assumption of what amounts to a general supervisory power over the trial of federal [386 U.S. 18, 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, 178:

    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 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 [386 U.S. 18, 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. 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 [386 U.S. 18, 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, 759 :

    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., [386 U.S. 18, 50]   at 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. 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, 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 [386 U.S. 18, 51]   of the rule. 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. 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 [386 U.S. 18, 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 7 and their divergence, if any, [386 U.S. 18, 53]   arises from the general formulation found in the opinions of the California Supreme Court.

    In People v. Watson, 46 Cal. 2d 818, 299 P.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, 218 . And the circuit courts have been equally varied in their expressions. [386 U.S. 18, 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." 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 [386 U.S. 18, 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. 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 [386 U.S. 18, 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. [386 U.S. 18, 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 1 ] For myself, I intimate no view on congressional power with respect to state courts in this regard.

    [ Footnote 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 ] 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 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 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 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 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 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 [386 U.S. 18, 53]   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 8 ] The rule was upheld by the Ninth Circuit in Sampsell v. California, 191 F.2d 721, against an attack on its constitutionality.

    [ Footnote 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. [386 U.S. 18, 58]  

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