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NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports. Readers are
requested to notify the Reporter of Decisions, Supreme Court of the
United States, Washington, D.C. 20543, of any typographical or other
formal errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 91-7358
--------
TODD A. BRECHT, PETITIONER v. GORDON A. ____
ABRAHAMSON, SUPERINTENDENT, DODGE
CORRECTIONAL INSTITUTION
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
[April 21, 1993]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In Chapman v. California, 386 U. S. 18, 24 (1967), we held that the standard _______ __________
for determining whether a conviction must be set aside because of federal
constitutional error is whether the error "was harmless beyond a reasonable
doubt." In this case we must decide whether the Chapman harmless-error standard _______
applies in determining whether the prosecution's use for impeachment purposes of
petitioner's post-Miranda (Ftnote. 1) silence, in violation of due process under (Ftnote. 1) _______
Doyle v. Ohio, 426 U. S. 610 (1976), entitles petitioner to habeas corpus_____ ____
relief. We hold that it does not. Instead, the standard for determining
whether habeas relief must be granted is whether the Doyle error "had _____
substantial and injurious effect or influence in determining the jury's
verdict." Kotteakos v. United States, 328 U. S. 750, 776 (1946). The Kotteakos _________ _____________ _________
harmless-error standard is better tailored to the nature and purpose of
collateral review than the Chapman standard, and application of a less onerous _______
harmless-error standard on habeas promotes the considerations underlying our
____________________
1) Miranda v. Arizona, 384 U. S. 436 (1966). 1) _______ _______ 91-7358 - OPINION
2 BRECHT v. ABRAHAMSON ____
habeas jurisprudence. Applying this standard, we conclude that petitioner is
not entitled to habeas relief.
Petitioner Todd A. Brecht was serving time in a Georgia prison for felony
theft when his sister and her husband, Molly and Roger Hartman, paid the
restitution for petitioner's crime and assumed temporary custody of him. The
Hartmans brought petitioner home with them to Alma, Wisconsin, where he was to
reside with them before entering a halfway house. This caused some tension in
the Hartman household because Roger Hartman, a local district attorney,
disapproved of petitioner's heavy drinking habits and homosexual orientation,
not to mention his previous criminal exploits. To make the best of the
situation, though, the Hartmans told petitioner, on more than one occasion, that
he was not to drink alcohol or engage in homosexual activities in their home.
Just one week after his arrival, however, petitioner violated this house rule.
While the Hartmans were away, petitioner broke into their liquor cabinet and
began drinking. He then found a rifle in an upstairs room and began shooting
cans in the backyard. When Roger Hartman returned home from work, petitioner
shot him in the back and sped off in Mrs. Hartman's car. Hartman crawled to a
neighbor's house to summon help. (The downstairs phone in the Hartmans' house
was inoperable because petitioner had taken the receiver on the upstairs phone
off the hook.) Help came, but Hartman's wound proved fatal. Meanwhile,
petitioner had driven Mrs. Hartman's car into a ditch in a nearby town. When a
police officer stopped to offer assistance, petitioner told him that his sister
knew about his car mishap and had called a tow truck. Petitioner then hitched a
ride to Winona, Minnesota, where he was stopped by police. At first he tried to
conceal his identity, but he later identified himself and was arrested. When he
was told that he was being held for the shooting, petitioner replied that "it
was a big mistake" and asked 91-7358 - OPINION
BRECHT v. ABRAHAMSON 3 ____
to talk with "somebody that would understand [him]." App. 39, 78. Petitioner
was returned to Wisconsin, and thereafter was given his Miranda warnings at an _______
arraignment.
Then petitioner was charged with first-degree murder. At trial in the Circuit
Court for Buffalo County, he took the stand and admitted shooting Hartman, but
claimed it was an accident. According to petitioner, when he saw Hartman
pulling into the driveway on the evening of the shooting, he ran to replace the
gun in the upstairs room where he had found it. But as he was running toward
the stairs in the downstairs hallway, he tripped, causing the rifle to discharge
the fatal shot. After the shooting, Hartman disappeared, so petitioner drove
off in Mrs. Hartman's car to find him. Upon spotting Hartman at his neighbor's
door, however, petitioner panicked and drove away.
The State argued that petitioner's account was belied by the fact that he had
failed to get help for Hartman, fled the Hartmans' home immediately after the
shooting, and lied to the police officer who came upon him in the ditch about
having called Mrs. Hartman. In addition, the State pointed out that petitioner
had failed to mention anything about the shooting being an accident to either
the officer who found him in the ditch, the man who gave him a ride to Winona,
or the officers who eventually arrested him. Over the objections of defense
counsel, the State also asked petitioner during cross-examination whether he had
told anyone at any time before trial that the shooting was an accident, to which
petitioner replied "no," and made several references to petitioner's pretrial
silence during closing argument. (Ftnote. 2) Finally, the State (Ftnote. 2)
____________________
2) The State's cross-examination of petitioner included the following 2)
exchange:
"Q. In fact the first time you have ever told this story is when you testified
here today was it not?
. . . . .
"A. You mean the story of actually what happened?
"Q. Yes.
"A. I knew what happened, I'm just telling it the way it happened, yes, I
didn't have a chance to talk to anyone, I didn't want to call somebody from a
phone and give up my rights, so I didn't want to talk about it, no sir." App.
22-23.
Then on re-cross-examination, the State further inquired:
"Q. Did you tell anyone about what had happened in Alma?
"A. No I did not." Id., at 23. ___
During closing argument, the State urged the jury to "remember that Mr. Brecht
never volunteered until in this courtroom what happened in the Hartman residence
. . . ." Id., at 30. It also made the following statement with regard to ___
petitioner's pre-trial silence: "He sits back here and sees all of our evidence
go in and then he comes out with this crazy story . . . ." Id., at 31. ___
Finally, during its closing rebuttal, the State said: "I know what I'd say [had
I been in petitioner's shoes], I'd say, `hold on, this was a mistake, this was
an accident, let me tell you what happened,' but he didn't say that did he. No,
he waited until he hears our story." Id., at 36. ___ 91-7358 - OPINION
4 BRECHT v. ABRAHAMSON ____
offered extrinsic evidence tending to contradict petitioner's story, including
the path the bullet traveled through Mr. Hartman's body (horizontal to slightly
downward) and the location where the rifle was found after the shooting
(outside), as well as evidence of motive (petitioner's hostility toward Mr.
Hartman because of his disapproval of petitioner's sexual orientation).
The jury returned a guilty verdict and petitioner was sentenced to life
imprisonment. The Wisconsin Court of Appeals set the conviction aside on the
ground that the State's references to petitioner's post-Miranda silence, see n. _______
2, supra, violated due process under Doyle v. Ohio, 426 U. S. 610 (1976), and _____ _____ ____
that this error was sufficiently "prejudicial" to require reversal. State v. _____
Brecht, 138 Wis. 2d 158, 168-169, 405 N. W. 2d 718, 723 (1987). The Wisconsin______
Supreme Court reinstated the conviction. Although it agreed that the State's
use of petitioner's post-Miranda silence was impermissible, the court determined _______
that this 91-7358 - OPINION
BRECHT v. ABRAHAMSON 5 ____
error "`was harmless beyond a reasonable doubt.'" State v. Brecht, 143 Wis. 2d _____ ______
297, 317, 421 N. W. 2d 96, 104 (1988) (quoting Chapman v. California, 386 U. S. _______ __________
18, 24 (1967)). In finding the Doyle violation harmless, the court noted that _____
the State's "improper references to Brecht's silence were infrequent," in that
they "comprised less than two pages of a 900 page transcript, or a few minutes
in a four day trial in which twenty-five witnesses testified," and that the
State's evidence of guilt was compelling. 143 Wis. 2d, at 317, 421 N. W. 2d, at
104.
Petitioner then sought a writ of habeas corpus under 28 U. S. C. S2254,
reasserting his Doyle claim. The District Court agreed that the State's use of _____
petitioner's post-Miranda silence violated Doyle, but disagreed with the _______ _____
Wisconsin Supreme Court that this error was harmless beyond a reasonable doubt,
and set aside the conviction. Brecht v. Abrahamson, 759 F. Supp. 500 (WD Wis. ______ __________
1991). The District Court based its harmless-error determination on its view
that the State's evidence of guilt was not "overwhelming," and that the State's
references to petitioner's post-Miranda silence, though "not extensive," were _______
"crucial" because petitioner's defense turned on his credibility. Id., at 508. ___
The Court of Appeals for the Seventh Circuit reversed. It, too, concluded that
the State's references to petitioner's post-Miranda silence violated Doyle, but _______ _____
it disagreed with both the standard that the District Court had applied in
conducting its harmless-error inquiry and the result it reached. 944 F. 2d
1363, 1368 and 1375-1376 (1991).
The Court of Appeals held that the Chapman harmless-error standard does not _______
apply in reviewing Doyle error on federal habeas. Instead, because of the _____
"prophylactic" nature of the Doyle rule, 944 F. 2d, at 1370, as well as the _____
costs attendant to reversing state convictions on collateral review, id., at ___
1373, the Court of Appeals held that the standard for determining whether
petitioner was entitled to habeas relief was whether the Doyle violation _____ 91-7358 - OPINION
6 BRECHT v. ABRAHAMSON ____
"`had substantial and injurious effect or influence in determining the jury's
verdict,'" 944 F. 2d, at 1375 (quoting Kotteakos v. United States, 328 U. S., _________ _____________
at 776). Applying this standard, the Court of Appeals concluded that petitioner
was not entitled to relief because, "given the many more, and entirely proper,
references to [petitioner's] silence preceding arraignment," he could not
contend with a "straight face" that the State's use of his post-Miranda silence _______
had a "substantial and injurious effect" on the jury's verdict. Id., at 1376. ___
We granted certiorari to resolve a conflict between the Courts of Appeals on
the question whether the Chapman harmless-error standard applies on collateral _______
review of Doyle violations, 504 U. S. - - (1992), (Ftnote. 3) and now affirm. (Ftnote. 3) _____
We are the sixth court to pass on the question whether the State's use for
impeachment purposes of petitioner's post-Miranda silence requires reversal of _______
his murder conviction. Petitioner urges us to even the count, and decide
matters in his favor once and for all. He argues that the Chapman harmless- _______
error standard applies with equal force on collateral review of Doyle error. _____
According to petitioner, the need to prevent state courts from relaxing their
standards on direct review of Doyle claims, and the confusion which would ensue _____
were we to adopt the Kotteakos harmless-error standard on collateral review, _________
require application of the Chapman standard here. Before considering these _______
arguments, however, we must first characterize the nature of Doyle error itself. _____
In Doyle v. Ohio, 426 U. S., at 619, we held that "the use for impeachment _____ ____
purposes of [a defendant's] silence, at the time of arrest and after receiving
Miranda warnings, violate[s] the Due Process Clause of the Fourteenth_______
Amendment." This rule "rests on `the fundamental
____________________
3) Compare Bass v. Nix, 909 F. 2d 297 (CA8 1990) (The Chapman harmless- 3) ____ ___ _______
error standard governs in reviewing Doyle violations on collateral review). _____ 91-7358 - OPINION
BRECHT v. ABRAHAMSON 7 ____
unfairness of implicitly assuring a suspect that his silence will not be used
against him and then using his silence to impeach an explanation subsequently
offered at trial.'" Wainwright v. Greenfield, 474 U. S. 284, 291 (1986) __________ __________
(quoting South Dakota v. Neville, 459 U. S. 553, 565 (1983)). The "implicit ____________ _______
assurance" upon which we have relied in our Doyle line of cases is the right-to- _____
remain-silent component of Miranda. Thus, the Constitution does not prohibit _______
the use for impeachment purposes of a defendant's silence prior to arrest,
Jenkins v. Anderson, 447 U. S. 231, 239 (1980), or after arrest if no Miranda_______ ________ _______
warnings are given, Fletcher v. Weir, 455 U. S. 603, 606-607 (1982) (per ________ ____ ____
curiam). Such silence is probative and does not rest on any implied assurance_______
by law enforcement authorities that it will carry no penalty. See 447 U. S., at
239.
This case illustrates the point well. The first time petitioner claimed that
the shooting was an accident was when he took the stand at trial. It was
entirely proper - and probative - for the State to impeach his testimony by
pointing out that petitioner had failed to tell anyone before the time he
received his Miranda warnings at his arraignment about the shooting being an _______
accident. Indeed, if the shooting was an accident, petitioner had every reason
- including to clear his name and preserve evidence supporting his version of
the events - to offer his account immediately following the shooting. On the
other hand, the State's references to petitioner's silence after that point in
time, or more generally to petitioner's failure to come forward with his version
of events at any time before trial, see n. 2, supra, crossed the Doyle line. _____ _____
For it is conceivable that, once petitioner had been given his Miranda warnings, _______
he decided to stand on his right to remain silent because he believed his
silence would not be used against him at trial.
The Court of Appeals characterized Doyle as "a prophylactic rule." 944 F. 2d, _____
at 1370. It reasoned that, since 91-7358 - OPINION
8 BRECHT v. ABRAHAMSON ____
the need for Doyle stems from the implicit assurance that flows from Miranda _____ _______
warnings, and "the warnings required by Miranda are not themselves part of the _______
Constitution," "Doyle is . . . a prophylactic rule designed to protect another _____
prophylactic rule from erosion or misuse." Ibid. But Doyle was not simply a _____ _____
further extension of the Miranda prophylactic rule. Rather, as we have _______
discussed, it is rooted in fundamental fairness and due process concerns.
However real these concerns, Doyle does not "`overprotec[t]' " them. Duckworth _____ _________
v. Eagan, 492 U. S. 195, 209 (1989) (O'CONNOR, J., concurring). Under the _____
rationale of Doyle, due process is violated whenever the prosecution uses for _____
impeachment purposes a defendant's post-Miranda silence. Doyle thus does not _______ _____
bear the hallmarks of a prophylactic rule.
Instead, we think Doyle error fits squarely into the category of _____
constitutional violations which we have characterized as "`trial error.' " See
Arizona v. Fulminante, 499 U. S. - - , - - (1991) (slip op., at 6). Trial_______ __________
error "occur[s] during the presentation of the case to the jury," and is
amenable to harmless-error analysis because it "may . . . be quantitatively
assessed in the context of other evidence presented in order to determine [the
effect it had on the trial]." Id., at - - (slip op., at 6). At the other ___
end of the spectrum of constitutional errors lie "structural defects in the
constitution of the trial mechanism, which defy analysis by `harmless-error'
standards." Id., at - - (slip op., at 8). The existence of such defects - ___
deprivation of the right to counsel, (Ftnote. 4) for example - (Ftnote. 4)
requires automatic reversal of the conviction because they infect the entire
trial process. See id., at - - . Since our landmark decision in Chapman v. ___ _______
California, 386 U. S. 18 (1967), we have applied the harmless-beyond-a-__________
reasonable-doubt standard in reviewing claims of constitutional error of the
____________________
4) Gideon v. Wainwright, 372 U. S. 335 (1963). 4) ______ __________ 91-7358 - OPINION
BRECHT v. ABRAHAMSON 9 ____
trial type.
In Chapman, we considered whether the prosecution's reference to the _______
defendants' failure to testify at trial, in violation of the Fifth Amendment
privilege against self-incrimination, (Ftnote. 5) required reversal (Ftnote. 5)
of their convictions. We rejected the argument that the Constitution requires a
blanket rule of automatic reversal in the case of constitutional error, and
concluded instead "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." Id., at 22. ___
After examining existing harmless-error rules, including the federal rule (28
U. S. C. S2111), we held "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." Id., at 24. The State bears the burden of proving ___
that an error passes muster under this standard.
Chapman reached this Court on direct review, as have most of the cases in _______
which we have applied its harmless-error standard. Although we have applied the
Chapman standard in a handful of federal habeas cases, see, e.g., Yates v._______ ____ _ _____
Evatt, 500 U. S. - - (1991); Rose v. Clark, 478 U. S. 570 (1986); Milton v._____ ____ _____ ______
Wainwright, 407 U. S. 371 (1972); Anderson v. Nelson, 390 U. S. 523 (1968) (per__________ ________ ______ ____
curiam), we have yet squarely to address its applicability on collateral_______
review. (Ftnote. 6) Petitioner contends that we are bound by these (Ftnote. 6)
habeas cases, by way of stare decisis, from _____ _______
____________________
5) Griffin v. California, 380 U. S. 609 (1965). 5) _______ __________
6) In Greer v. Miller, 483 U. S. 756 (1987), we granted certiorari to 6) _____ ______
consider the same question presented here but did not reach this question
because we concluded that no Doyle error had occurred in that case. See 483 _____
U. S., at 761, n. 3, and 765. But see id., at 768 (STEVENS, J., concurring in __
judgment) ("I believe the question presented in the certiorari petition -
whether a federal court should apply a different standard in reviewing Doyle _____
errors in a habeas corpus action - should be answered in the affirmative") _________________________
(emphasis in original). 91-7358 - OPINION
10 BRECHT v. ABRAHAMSON ____
holding that the Kotteakos harmless-error standard applies on habeas review of _________
Doyle error. But since we have never squarely addressed the issue, and have at_____
most assumed the applicability of the Chapman standard on habeas, we are free to _______
address the issue on the merits. See Edelman v. Jordan, 415 U. S. 651, 670-671 _______ ______
(1974).
The federal habeas corpus statute is silent on this point. It permits federal
courts to entertain a habeas petition on behalf of a state prisoner "only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States," 28 U. S. C. S2254(a), and directs simply that
the court "dispose of the matter as law and justice require," S2243. The
statute says nothing about the standard for harmless-error review in habeas
cases. Respondent urges us to fill this gap with the Kotteakos standard, under _________
which an error requires reversal only if it "had substantial and injurious
effect or influence in determining the jury's verdict." Kotteakos v. United _________ ______
States, 328 U. S., at 776. This standard is grounded in the federal harmless-______
error statute. 28 U. S. C. S2111 ("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"). (Ftnote. 7) On its face S2111 (Ftnote. 7)
might seem to address the
____________________
7) In Kotteakos, we construed S2111's statutory predecessor, 28 U. S. C. 7) _________
S391. Section 391 provided: "On the hearing of any appeal, certiorari, writ of
error, or motion for a new trial, in any case, civil or criminal, the court
shall give judgment after an examination of the entire record before the court,
without regard to technical errors, defects, or exceptions which do not affect
the substantial rights of the parties." 28 U. S. C. S391 (1925-1926 ed.). In
formulating S391's harmless-error standard, we focused on the phrase "affect
the substantial rights of the parties," and held that the test was whether the
error "had substantial and injurious effect or influence in determining the
jury's verdict." 328 U. S., at 776. Although Congress tinkered with the
language of S391 when it enacted S 2111 in its place in 1949, Congress left
untouched the phrase "affect the substantial rights of the parties." Thus, the
enactment of S2111 did not alter the basis for the harmless-error standard
announced in Kotteakos. If anything, Congress' deletion of the word _________
"technical," makes S2111 more amenable to harmless-error review of
constitutional violations. Cf. United States v. Hasting, 461 U. S. 499, _____________ _______
509-510, n. 7 (1983). 91-7358 - OPINION
BRECHT v. ABRAHAMSON 11 ____
situation at hand, but to date we have limited its application to claims of
nonconstitutional error in federal criminal cases. See, e.g., United States v. _____ _ _____________
Lane, 474 U. S. 438 (1986).____
Petitioner asserts that Congress' failure to enact various proposals since
Chapman was decided that would have limited the availability of habeas relief_______
amounts to legislative disapproval of application of a less stringent harmless-
error standard on collateral review of constitutional error. Only one of these
proposals merits discussion here. In 1972, a bill was proposed that would have
amended 28 U. S. C. S2254 to require habeas petitioners to show that "a
different result would probably have obtained if such constitutional violation
had not occurred." 118 Cong. Rec. 24936 (1972) (quoting S. 3833, 92d Cong., 2d
Sess. (1972)). In response, the Attorney General suggested that the above
provision be modified to make habeas relief available only where the petitioner
"`suffered a substantial deprivation of his constitutional rights at his
trial.'" 118 Cong. Rec. 24939 (1972) (quoting letter from Richard G.
Kleindienst, Attorney General, to Emanuel Celler, Chairman of the House
Committee on the Judiciary (June 21, 1972)). This language of course parallels
the federal harmless-error rule. But neither the Attorney General's suggestion
nor the proposed bill itself was ever enacted into law.
As a general matter, we are "reluctant to draw inferences from Congress'
failure to act." Schneidewind v. ANR Pipeline Co., 485 U. S. 293, 306 (1988) ____________ ________________
(citing American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S. ______________________________ ___________________________
397, 416-418 (1967)); Red Lion Broadcast- ___________________ 91-7358 - OPINION
12 BRECHT v. ABRAHAMSON ____
ing Co. v. FCC, 395 U. S. 367, 381, n. 11 (1969)). We find no reason to depart_______ ___
from this rule here. In the absence of any express statutory guidance from
Congress, it remains for this Court to determine what harmless-error standard
applies on collateral review of petitioner's Doyle claim. We have filled the _____
gaps of the habeas corpus statute with respect to other matters, see, e.g., ____ _
McCleskey v. Zant, 499 U. S. - - , - - (1991); Wainwright v. Sykes, 433_________ ____ __________ _____
U. S. 72, 81 (1977); Sanders v. United States, 373 U. S. 1, 15 (1963); Townsend _______ _____________ ________
v. Sain, 372 U. S. 293, 312-313 (1963), and find it necessary to do so here. As ____
always, in defining the scope of the writ, we look first to the considerations
underlying our habeas jurisprudence, and then determine whether the proposed
rule would advance or inhibit these considerations by weighing the marginal
costs and benefits of its application on collateral review.
The principle that collateral review is different from direct review resounds
throughout our habeas jurisprudence. See, e.g., Wright v. West, 505 U. S. - - ____ _ ______ ____
, - - (1992) (opinion of THOMAS, J.); Teague v. Lane, 489 U. S. 288, 306 ______ ____
(1989) (opinion of O'CONNOR, J.); Pennsylvania v. Finley, 481 U. S. 551, 556-557 ____________ ______
(1987); Mackey v. United States, 401 U. S. 667, 682 (1971) (Harlan, J., ______ _____________
concurring in judgments in part and dissenting in part). Direct review is the
principal avenue for challenging a conviction. "When the process of direct
review - which, if a federal question is involved, includes the right to
petition this Court for a writ of certiorari - comes to an end, a presumption of
finality and legality attaches to the conviction and sentence. The role of
federal habeas proceedings, while important in assuring that constitutional
rights are observed, is secondary and limited. Federal courts are not forums in
which to relitigate state trials." Barefoot v. Estelle, 463 U. S. 880, 887 ________ _______
(1983).
In keeping with this distinction, the writ of habeas corpus has historically
been regarded as an extraordinary 91-7358 - OPINION
BRECHT v. ABRAHAMSON 13 ____
remedy, "a bulwark against convictions that violate `fundamental fairness.'"
Engle v. Isaac, 456 U. S. 107, 126 (1982) (quoting Wainwright v. Sykes, supra,_____ _____ __________ _____ _____
at 97 (STEVENS, J., concurring)). "Those few who are ultimately successful [in
obtaining habeas relief] are persons whom society has grievously wronged and for
whom belated liberation is little enough compensation." Fay v. Noia, 372 U. S. ___ ____
391, 440-441 (1963). See also Kuhlmann v. Wilson, 477 U. S. 436, 447 (1986) ________ ______
(plurality opinion) ("The Court uniformly has been guided by the proposition
that the writ should be available to afford relief to those `persons whom
society has grievously wronged' in light of modern concepts of justice")
(quoting Fay v. Noia, supra, at 440-441); Jackson v. Virginia, 443 U. S. 307, ___ ____ _____ _______ ________
332, n. 5 (1979) (STEVENS, J., concurring in judgment) (Habeas corpus "is
designed to guard against extreme malfunctions in the state criminal justice
systems"). Accordingly, it hardly bears repeating that "`an error that may
justify reversal on direct appeal will not necessarily support a collateral
attack on a final judgment.'" United States v. Frady, 456 U. S. 152, 165 _____________ _____
(1982) (quoting United States v. Addonizio, 442 U. S. 178, 184 _____________ _________
(1979)). (Ftnote. 8) (Ftnote. 8)
Recognizing the distinction between direct and collateral review, we have
applied different standards on habeas than would be applied on direct review
with respect to matters other than harmless-error analysis. Our recent
retroactivity jurisprudence is a prime example. Although new rules always have
retroactive application to criminal cases on direct review, Griffith v. ________
Kentucky, 479 U. S. 314, 320-328 (1987), we have held that they seldom have________
retroactive application to criminal cases on federal habeas,
____________________
8) For instance, we have held that an error of law does not provide a 8)
basis for habeas relief under 28 U. S. C. S2255 unless it constitutes " `a
fundamental defect which inherently results in a complete miscarriage of
justice.'" United States v. Timmreck, 441 U. S. 780, 783 (1979) (quoting Hill _____________ ________ ____
v. United States, 368 U. S. 424, 428 (1962)). _____________ 91-7358 - OPINION
14 BRECHT v. ABRAHAMSON ____
Teague v. Lane, supra, at 305-310 (opinion of O'CONNOR, J.). Other examples______ ____ _____
abound throughout our habeas cases. See, e.g., Pennsylvania v. Finley, 481 ____ _ ____________ ______
U. S. 551, 555-556 (1987) (Although the Constitution guarantees the right to
counsel on direct appeal, Douglas v. California, 372 U. S. 353, 355 (1963), _______ __________
there is no "right to counsel when mounting collateral attacks"); United States _____________
v. Frady, supra, at 162-169 (While the federal "plain error" rule applies in _____ _____
determining whether a defendant may raise a claim for the first time on direct
appeal, the "cause and prejudice" standard applies in determining whether that
same claim may be raised on habeas); Stone v. Powell, 428 U. S. 465, 489-496 _____ ______
(1976) (Claims under Mapp v. Ohio, 367 U. S. 643 (1961), are not cognizable on ____ ____
habeas as long as the state courts have provided a full and fair opportunity to
litigate them at trial or on direct review).
The reason most frequently advanced in our cases for distinguishing between
direct and collateral review is the State's interest in the finality of
convictions that have survived direct review within the state court system.
See, e.g., Wright v. West, supra, at - - (opinion of THOMAS, J.); McCleskey ____ _ ______ ____ _____ _________
v. Zant, 499 U. S., at - - ; Wainwright v. Sykes, 433 U. S., at 90. We have ____ __________ _____
also spoken of comity and federalism. "The States possess primary authority for
defining and enforcing the criminal law. In criminal trials they also hold the
initial responsibility for vindicating constitutional rights. Federal
intrusions into state criminal trials frustrate both the States' sovereign power
to punish offenders and their good-faith attempts to honor constitutional
rights." Engle v. Isaac, supra, at 128. See also Coleman v. Thompson, 501 _____ _____ _____ _______ ________
U. S. - - , - - (1991); McCleskey, supra, at - - . Finally, we have _________ _____
recognized that "[l]iberal allowance of the writ . . . degrades the prominence
of the trial itself," Engle, supra, at 127, and at the same time encourages _____ _____
habeas petitioners to relitigate their claims on collateral review. See Rose v. ____
Lundy, 455 U. S. 509, 547 (1982) (STEVENS, J.,_____ 91-7358 - OPINION
BRECHT v. ABRAHAMSON 15 ____
dissenting).
In light of these considerations, we must decide whether the same harmless-
error standard that the state courts applied on direct review of petitioner's
Doyle claim also applies in this habeas proceeding. We are the sixth court to_____
pass on the question whether the State's use for impeachment purposes of
petitioner's post-Miranda silence in this case requires reversal of his _______
conviction. Each court that has reviewed the record has disagreed with the
court before it as to whether the State's Doyle error was "harmless." State _____
courts are fully qualified to identify constitutional error and evaluate its
prejudicial effect on the trial process under Chapman, and state courts often _______
occupy a superior vantage point from which to evaluate the effect of trial
error. See Rushen v. Spain, 464 U. S. 114, 120 (1983) (per curiam). For these ______ _____ ____________
reasons, it scarcely seems logical to require federal habeas courts to engage in
the identical approach to harmless-error review that Chapman requires state _______
courts to engage in on direct review.
Petitioner argues that application of the Chapman harmless-error standard on _______
collateral review is necessary to deter state courts from relaxing their own
guard in reviewing constitutional error and to discourage prosecutors from
committing error in the first place. Absent affirmative evidence that state-
court judges are ignoring their oath, we discount petitioner's argument that
courts will respond to our ruling by violating their Article VI duty to uphold
the Constitution. See Robb v. Connolly, 111 U. S. 624, 637 (1884). Federalism, ____ ________
comity, and the constitutional obligation of state and federal courts all
counsel against any presumption that a decision of this Court will "deter" lower
federal or state courts from fully performing their sworn duty. See Engle, _____
supra, at 128; Schneckloth v. Bustamonte, 412 U. S. 218, 263-265 (1973) (Powell,_____ ___________ __________
J., concurring). In any event, we think the costs of applying the Chapman _______
standard on federal habeas out- 91-7358 - OPINION
16 BRECHT v. ABRAHAMSON ____
weigh the additional deterrent effect, if any, which would be derived from its
application on collateral review.
Overturning final and presumptively correct convictions on collateral review
because the State cannot prove that an error is harmless under Chapman _______
undermines the States' interest in finality and infringes upon their sovereignty
over criminal matters. Moreover, granting habeas relief merely because there is
a "`reasonable possibility' " that trial error contributed to the verdict, see
Chapman v. California, 386 U. S., at 24 (quoting Fahy v. Connecticut, 375 U. S._______ __________ ____ ___________
85, 86 (1963)), is at odds with the historic meaning of habeas corpus - to
afford relief to those whom society has "grievously wronged." Retrying defen-
dants whose convictions are set aside also imposes significant "social costs,"
including the expenditure of additional time and resources for all the parties
involved, the "erosion of memory" and "dispersion of witnesses" which accompany
the passage of time and make obtaining convictions on retrial more difficult,
and the frustration of "society's interest in the prompt administration of
justice." United States v. Mechanik, 475 U. S. 66, 72 (1986) (internal _____________ ________
quotation marks omitted). And since there is no statute of limitations
governing federal habeas, and the only laches recognized are those which affect
the State's ability to defend against the claims raised on habeas, retrials
following the grant of habeas relief ordinarily take place much later than do
retrials following reversal on direct review.
The imbalance of the costs and benefits of applying the Chapman harmless-error _______
standard on collateral review counsels in favor of applying a less onerous
standard on habeas review of constitutional error. The Kotteakos standard, we _________
believe, fills the bill. The test under Kotteakos is whether the error "had _________
substantial and injurious effect or influence in determining the jury's
verdict." 328 U. S., at 776. Under this standard, habeas petitioners may
obtain plenary review of their constitu- 91-7358 - OPINION
BRECHT v. ABRAHAMSON 17 ____
tional claims, but they are not entitled to habeas relief based on trial error
unless they can establish that it resulted in "actual prejudice." See United ______
States v. Lane, 474 U. S. 438, 449 (1986). The Kotteakos standard is thus______ ____ _________
better tailored to the nature and purpose of collateral review, and more likely
to promote the considerations underlying our recent habeas cases. Moreover,
because the Kotteakos standard is grounded in the federal harmless-error rule _________
(28 U. S. C. S2111), federal courts may turn to an existing body of case law in
applying it. Therefore, contrary to the assertion of petitioner, application of
the Kotteakos standard on collateral review is unlikely to confuse matters for _________
habeas courts.
For the foregoing reasons, then, we hold that the Kotteakos harmless-error _________
standard applies in determining whether habeas relief must be granted because of
constitutional error of the trial type. (Ftnote. 9) All that (Ftnote. 9)
remains to be decided is whether petitioner is entitled to relief under this
standard based on the State's Doyle error. Because the Court of Appeals applied _____
the Kotteakos standard below, we proceed to this question ourselves rather than _________
remand the case for a new harmless-error determination. Cf. Yates v. Evatt, 500 _____ _____
U. S. - - , - - (1991). At trial, petitioner admitted shooting Hartman,
but claimed it was an accident. The principal question before the jury,
therefore, was whether the State met its burden in proving beyond a reasonable
doubt that the shooting was intentional. Our inquiry here is whether, in light
of the record as a whole, the State's improper use for impeach-
____________________
9) Our holding does not foreclose the possibility that in an unusual case, 9)
a deliberate and especially egregious error of the trial type, or one that is
combined with a pattern of prosecutorial misconduct, might so infect the
integrity of the proceeding as to warrant the grant of habeas relief, even if it
did not substantially influence the jury's verdict. Cf. Greer v. Miller, 483 _____ ______
U. S. 756, 769 (1987) (STEVENS, J., concurring in judgment). We, of course, are
not presented with such a situation here. 91-7358 - OPINION
18 BRECHT v. ABRAHAMSON ____
ment purposes of petitioner's post-Miranda silence, see n. 2, supra, "had _______ _____
substantial and injurious effect or influence in determining the jury's
verdict." We think it clear that it did not.
The State's references to petitioner's post-Miranda silence were infrequent, _______
comprising less than two pages of the 900-page trial transcript in this case.
And in view of the State's extensive and permissible references to petitioner's
pre-Miranda silence - i.e., his failure to mention anything about the shooting _______ _____
being an accident to either the officer who found him in the ditch, the man who
gave him a ride to Winona, or the officers who eventually arrested him - its
references to petitioner's post-Miranda silence were, in effect, cumulative. _______
Moreover, the State's evidence of guilt was, if not overwhelming, certainly
weighty. The path of the bullet through Mr. Hartman's body was inconsistent
with petitioner's testimony that the rifle had discharged as he was falling.
The police officers who searched the Hartmans' home found nothing in the
downstairs hallway which could have caused petitioner to trip. The rifle was
found outside the house (where Hartman was shot), not inside where petitioner
claimed it had accidently fired, and there was a live round rammed in the gun's
chamber, suggesting that petitioner had tried to fire a second shot. Finally,
other circumstantial evidence, including the motive proffered by the State, also
pointed to petitioner's guilt.
In light of the foregoing, we conclude that the Doyle error which occurred at _____
petitioner's trial did not "substantially influence" the jury's verdict.
Petitioner is therefore not entitled to habeas relief, and the judgment of the
Court of Appeals is
Affirmed. ________
