Chapman v. California, 386 U.S. 18 (1967)

MR. JUSTICE STEWART, concurring in the result.

In devising a harmless error rule for violations of federal constitutional rights, both the Court and the dissent proceed as if the question were one of first impression. But, in a long line of cases involving a variety of constitutional claims in both state and federal prosecutions, this Court has steadfastly rejected any notion that constitutional violations might be disregarded on the ground that they were "harmless." Illustrations of the principle are legion.

When involuntary confessions have been introduced at trial, the Court has always reversed convictions regardless of other evidence of guilt. As we stated in Lynumn v. Illirois, 372 U.S. 528, 537, the argument that the error in admitting such a confession "was a harmless one . . . is an impermissible doctrine." That conclusion 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 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 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.

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.

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).

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.