Brecht v. Abrahamson: harmful error in habeas corpus law.

AuthorLiebman, James S.
PositionCriminal Law

    For the past two and one-half decades, the Supreme Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions.(1) Under that rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible,(2) the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt.(3) The Supreme Court adopted this stringent standard in Chapman v. California(4) to fulfill the federal courts' responsibility to "protect people from infractions by the States of federally guaranteed rights."(5) Although Chapman itself arose on direct appeal, the Court understood the decision's harmless error rule to be of constitutional magnitude(6) and, consistent with the principle of parity between direct and habeas corpus consideration of constitutional issues in the federal courts,(7) the Court repeatedly and routinely applied the same standard in habeas corpus proceedings.(8) So did the lower federal courts.(9)

    In its 1993 decision in Brecht v. Abrahamson,(10) however, a bare majority of the Court ruled that a new and different measure of harmless error should apply in federal habeas corpus proceedings. The applicable standard is the one the Court fashioned in 1946 in Kotteakos v. United States(11) for assessing the harmlessness of nonconstitutional errors:(12) an error may be deemed harmless if the reviewing court finds that "the error did not influence the jury, or had but very slight effect"(13) and that "the judgment was not substantially swayed by the error."(14) Or, to use the phrase the Brecht Court most frequently extracted from Kotteakos, "the standard for determining whether habeas relief must be granted is whether the ... error 'had substantial and injurious effect or influence in determining the jury's verdict.'"(15)

    To justify the newly drawn distinction between the harmless error rule that applies on direct appeal and the different one that applies in habeas corpus, the Brecht majority pointed to "the State's interest in the finality of convictions that have survived direct review within the state court system" and concerns of "comity and federalism."(16) It is difficult to see how these rationales justify Brecht's almost singular departure from over 200 years of direct appeal/habeas corpus parity in the scope and standard of review of constitutional issues.(17) As Justice O'Connor observed in her dissent in Brecht, the interests identified by the majority have little bearing on the choice of harmless error standard.(18) Rather, as Justice White and Justice O'Connor emphasized in dissent in Brecht, and as one member of the five-person majority seemed to acknowledge, the most significant, statutorily recognized interest bearing on the issue--the federal courts' obligation to vindicate federal constitutional rights and to protect criminal defendants from unconstitutional convictions and sentences--calls for restraint in finding constitutional errors to be harmless, whether the federal forum is direct review in the Supreme Court or habeas corpus review in the federal courts as a whole.(19)

    On analysis, indeed, the Brecht limitation on the applicability of the Chapman rule may be as much an opening sally against the Chapman rule itself as it is an assault on the principle of direct appeal/habeas corpus parity. The Court thus may be setting the groundwork for a switch to the Kotteakos harmless error standard whenever a federal court finds constitutional trial error in any forum, whether on direct appeal or in postconviction proceedings.(20)

    Prior to Brecht, the application of the harmless error rule in habeas corpus cases did not merit special comment. The rule applied in the same, well-established manner in those cases as on direct appeal in virtually all American courts with jurisdiction over criminal and constitutional matters. Any discussion of the intricacies of the harmless error rule consequently applied equally to direct appeal and habeas corpus.(21) Suddenly, however, Brecht has thrown up for grabs the application of this previously well-understood set of doctrines, at least in habeas corpus cases. Courts now must answer anew a whole series of potentially difficult questions. For example, which party bears the burden of proving harmlessness vel non in habeas corpus proceedings? To what constitutional issues does harmless error analysis apply in habeas corpus cases? What standards, criteria, and factors should govern the application of the Brechtikotteahos rule? Are there exceptional circumstances in which the Chapman standard should continue to apply in habeas corpus cases?

    Drawing on the Court's analysis in Brecht and the cases and other sources that the Court there treats as authoritative, this Article provides some preliminary answers to these and other questions posed by the Court's adoption of the Brecht/Kotteakos rule in habeas corpus cases. Part Il discusses the question of which party bears the burdens of pleading and proving an error's harmlessness. Part III addresses the concept of "prejudice per se" and the categories of errors that the Court exempts from harmless-error analysis. Part IV provides a detailed examination of the new test of harmless error, the degree of certainty required before a court can find that test satisfied, the focus of the court's attention and the criteria it appropriately may consider in determining harmlessness, and the manner in which a court should go about informing its judgment on the harmless error question. Finally, Part V discusses an exception to the Brecht/Kotteakos rule that Brecht appears to recognize for trial errors involving egregious or cumulative misconduct.



      Like other defenses to habeas corpus relief, the "harmless error" obstacle does not arise unless the state asserts it; the state's failure to do so in a timely and unequivocal fashion waives the defense.(22) Indeed, the "harmless error" rule is particularly susceptible to the types of abuse that have led the Supreme Court to call for strict application of waiver rules to the state in habeas corpus proceedings. Absent allocation to the state of the burden of pleading, the state initially could limit its arguments to the question of whether error occurred, thus "seek[ing] a favorable ruling on the merits ... while holding the [harmless error] defense in reserve for use"(23) only after the district court has ruled against the state on the merits or, worse, after the merits ruling has gone up on appeal.(24)


      Before the Court's decision in Brecht, the applicable rule of Chapman v. California(25) Squarely placed the burden of proving harmlessness beyond a reasonable doubt on the state.(26) This allocation of the burden applied in habeas corpus proceedings as well as on direct appeal.(27)

      Although Brecht changes the substantive standard for assessing the harmlessness of constitutional error in habeas corpus proceedings, it apparently leaves intact the preexisting allocation to the state of the burden of proving harmlessness. Regrettably, however, especially for litigants and judges faced with the Court's substitution of the confusion-ridden Kotteakos standard(28) for the thoroughly understood Chapman rule, the majority did not explicitly reach this conclusion but instead left it to be inferred from other aspects of its opinion and the sources on which it relied.(29) The Court's dereliction, by remaining silent on the allocation of the burden of proof, is all the more vexing given the debate that rages on the issue in separate opinions in the case. Thus, although Justice Stevens, who provided the necessary fifth vote for the majority, wrote a concurring opinion designed explicitly to make clear, among other things, that the Brecht/Kotteakos standard "places the burden on prosecutors to explain why . . . errors [are] harmless,"(30) Justice White's dissent characterizes the majority opinion as "impos[ing] on the defendant the burden of establishing that the error |resulted in "actual prejudice."'"(31)

      The best place to begin the analysis that the majority necessitated by its silence on this important question is by noting what the Court did not hold. justice White's dissent notwithstanding, there are at least five good reasons why the majority opinion cannot be read to assign the burden of proof to the petitioner. First, the majority opinion contains not a single passage or word devoted expressly to the allocation of the burden of proof Second, other parts of the majority opinion stand for the proposition that issues not "squarely addressed" by the Court should not be taken as decided.(32) Third, the majority opinion clearly acknowledged the difference between the "Chapman . . . standard for determining whether a conviction must be set aside because of federal constitutional error[, i.e.,] . . . whether the error |was harmless beyond a reasonable doubt'"(33) and Chapman's allocation of the "burden of proving that an error passes muster under this standard," which, as the Court noted, "[t]he State bears."(34) Yet, when the Court came to state how its holding changed Chapman, it repeatedly referred only to the Chapman "standard."(35) Fourth, Justice Stevens wrote explicitly to say that he would not have joined the majority opinion, thus providing the fifth and decisive vote, but for his understanding that the opinion placed the burden of proof on the state.(36) Fifth, five Justices--Justice Stevens in a concurring opinion and Justices White, Blackmun, O'Connor, and Souter in dissenting opinions--explicitly endorsed harmless error rules that allocate the...

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