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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 92-5129
- --------
- JOHN SULLIVAN, PETITIONER v. LOUISIANA
- on writ of certiorari to the supreme court of
- louisiana
- [June 1, 1993]
-
- Chief Justice Rehnquist, concurring.
- In Arizona v. Fulminante, 499 U. S. -- (1991), we
- divided the class of constitutional violations that may
- occur during the course of a criminal proceeding, be it at
- trial or sentencing, into two categories: one consisting of
- -trial error[s],- which -may . . . be quantitatively assessed
- in the context of other evidence presented,- id., at --
- (slip op., at 6) (opinion of Rehnquist, C.J., for the Court),
- and are amenable to harmless-error analysis; the other
- consisting of -structural defects,- which -affec[t] the
- framework within which the trial proceeds,- id., at --
- (slip op., at 8), and require automatic reversal. There is
- a -strong presumption- that any error will fall into the
- first of these categories. Rose v. Clark, 478 U. S. 570,
- 579 (1986). Thus, it is the rare case in which a constitu-
- tional violation will not be subject to harmless-error
- analysis. See Fulminante, supra, at -- (slip op., at 8)
- (listing examples of structural errors).
- The Court holds today that the reasonable-doubt instruc-
- tion given at Sullivan's trial, which (it is conceded)
- violates due process under our decision in Cage v. Louisi-
- ana, 498 U. S. 39 (1990) (per curiam), amounts to struc-
- tural error, and thus cannot be harmless regardless of
- how overwhelming the evidence of Sullivan's guilt. See
- ante, at 6-7. It grounds this conclusion in its determina-
- tion that harmless-error analysis cannot be conducted with
- respect to error of this sort consistent with the Sixth
- Amendment right to a jury trial. We of course have long
- since rejected the argument that, as a general matter, the
- Sixth Amendment prohibits the application of harmless-
- error analysis in determining whether constitutional error
- had a prejudicial impact on the outcome of a case. See,
- e.g., Rose, supra, at 582, n. 11. The Court concludes that
- the situation at hand is fundamentally different, though,
- because, in the case of a constitutionally deficient reason-
- able-doubt instruction, -the entire premise of Chapman
- [harmless-error] review is simply absent.- Ante, at 5.
- Where the jury views the evidence from the lens of a
- defective reasonable-doubt instruction, the Court reasons,
- there can be no factual findings made by the jury beyond
- a reasonable doubt in which an appellate court can
- ground its harmless-error analysis. See ante, at 6. The
- Court thus distinguishes our cases in which we have
- found jury instructions that create an unconstitutional
- presumption regarding an element of the offense subject
- to harmless-error review. In Rose v. Clark, supra, for
- example, we held that harmless-error analysis may be
- applied in reviewing instructions that violate the princi-
- ples of Sandstrom v. Montana, 442 U. S. 510 (1979), and
- Francis v. Franklin, 471 U. S. 307 (1985). The -malice
- instruction- in Rose shifted the burden of proof on the
- issue of intent, in violation of due process under our
- decision in Sandstrom. Because the jury was instructed
- to presume malice from certain predicate facts, and it was
- required to find those facts beyond a reasonable doubt, we
- held that the Sandstrom error was amenable to harmless-
- error analysis. 478 U. S., at 580. See also Connecticut
- v. Johnson, 460 U. S. 73, 96-97 (1983) (Powell, J., dis-
- senting).
- There are many similarities between the instructional
- error in Rose and the one in this case. In the first place,
- neither error restricted the defendants' -opportunity to put
- on evidence and make argument to support [their] claim[s]
- of innocence.- 478 U. S., at 579. Moreover, -[u]nlike
- [structural] errors such as judicial bias or denial of
- counsel, the error[s] . . . did not affect the composition of
- the record.- Id., at 579, n. 7. Finally, neither error
- removed an element of the offense from the jury's consid-
- eration, id., at 580, n. 8, or prevented the jury from
- considering certain evidence. (In this regard, a trial in
- which a deficient reasonable-doubt instruction is given
- seems to me to be quite different from one in which no
- reasonable-doubt instruction is given at all.) Thus, in
- many respects, the Cage violation committed at Sullivan's
- trial bears the hallmark of an error that is amenable to
- harmless-error analysis.
- One may question whether, even in the case of
- Sandstrom error, the ability to conduct harmless-error
- review is dependent on the existence of -beyond a reason-
- able doubt- jury findings. In the typical case, of course,
- a jury does not make explicit factual findings; rather, it
- simply renders a general verdict on the question of guilt
- or innocence. Thus, although it may be possible to
- conclude from the jury's verdict that it has found a
- predicate fact (or facts), the reviewing court is usually left
- only with the record developed at trial to determine
- whether it is possible to say beyond a reasonable doubt
- that the error did not contribute to the jury's verdict.
- Moreover, any time an appellate court conducts harmless-
- error review it necessarily engages in some speculation as
- to the jury's decisionmaking process; for in the end no
- judge can know for certain what factors led to the jury's
- verdict. Cf. Pope v. Illinois, 481 U. S. 497, 503, n. 6
- (1987). Yet harmless-error review has become an integral
- component of our criminal justice system. See Delaware
- v. Van Arsdall, 475 U. S. 673, 681 (1986); Chapman v.
- California, 386 U. S. 18, 22 (1967).
- Despite these lingering doubts, I accept the Court's
- conclusion that a constitutionally deficient reasonable-
- doubt instruction is a breed apart from the many other
- instructional errors that we have held are amenable to
- harmless-error analysis. See, e.g., Carella v. California,
- 491 U. S. 263 (1989) (per curiam) (instruction containing
- erroneous conclusive presumption); Pope v. Illinois, supra
- (instruction misstating an element of the offense); Rose v.
- Clark, supra (instruction containing erroneous burden-
- shifting presumption). A constitutionally deficient reason-
- able-doubt instruction will always result in the absence
- of -beyond a reasonable doubt- jury findings. That being
- the case, I agree that harmless-error analysis cannot be
- applied in the case of a defective reasonable-doubt instruc-
- tion consistent with the Sixth Amendment's jury-trial
- guarantee. I join the Court's opinion.
-