dissenting.
The only question in this case which merits consideration by this Court, and which alone accounts for the case being here at all, is that which the majority does not reach: Does the Fourteenth Amendment prevent a State from applying its harmless-error rule in a criminal trial with respect to the erroneous admission of evidence obtained through an unconstitutional search and seizure? The majority avoids this issue only by disregarding the finding of the Connecticut Supreme Court of Errors that the erroneously admitted evidence was without prejudicial effect on the outcome of petitioner’s trial.
Evidentiary questions of this sort are not a proper part of this Court’s business, particularly in cases coming here from state courts over which this Court possesses no supervisory power. This is not the rare instance of a state conviction which rests upon a record that is devoid of any evidence to support the charge against the defendant, see Thompson v. Louisville, 362 U. S. 199; Garner v. Louisiana, 368 U. S. 157. The most that can be said is that the record leaves the issue of harmless error open to differing conclusions. That, however, furnishes no ground for this Court’s intervention, even in the name of avoiding the constitutional question which brought the case here.
Furthermore, taking the Court’s opinion on its own bottom, I feel compelled to say, with due respect, that I am unable to understand its evaluation of the record. *93The opinion below provides the full answer to the petitioner’s claim that the admission into evidence of the can of paint and paint brush prejudiced him:
“. . . The defendants do not claim, nor, as the transcript shows, could they claim, that the illegal search and seizure induced their admissions or confessions. Their claim is that, ‘[h]ad they been able to preclude the admission of the illegally seized evidence, [their] confessions would not have been admissible,’ under the rule of State v. Doucette, 147 Conn. 95, 98, 157 A. 2d 487, because there was, apart from the confessions, insufficient evidence of the corpus delicti, that is, that the crime charged had been committed by someone. In other words, their claim is that the state, in order to prove that a crime had been committed, had to rely solely on the admission in evidence of the paint jar and the brush. The answer to that claim is that there was ample evidence besides the defendants’ confessions and the jar of paint and the brush to prove that swastikas had been painted on the synagogue between the hours of 4 and 5 o’clock on the morning of February 1, 1960. This was sufficient to establish that the crime charged had been committed by someone. The confessions were not inadmissible on the ground claimed, and no other ground of inadmissibility is advanced.
“The paint jar and the brush, which were exhibits, were, at most, cumulative. The transcript of the evidence of the state’s case, in chief, discloses overwhelming evidence of the guilt of the defendants. They were observed a block from the scene of the crime at approximately the time when it was committed, riding in an automobile without lights, and were brought to a stop only after a police officer had pursued them for upwards of a mile. When the *94police later in the morning came with warrants to arrest them, they admitted their guilt at once and attempted to excuse their conduct as a ‘prank.’ Both later freely confessed. . . .” 149 Conn. 577, 587-588, 183 A. 2d 256, 261-262.
The Court’s discussion of corroborative and cumulative evidence and its effect on the conduct of the defense is surely beside the point in a case in which both before and during trial it was not disputed that the petitioner had committed the acts in question and the only defense raised was that the acts were not criminal as charged.1
This brings me to the question which the Court does not reach: Was it constitutionally permissible for Connecticut to apply its harmless-error rule to save this conviction from the otherwise vitiating effect of the admission of the unconstitutionally seized evidence? I see no reason why not. It is obvious that there is no necessary connection between the fact that evidence was unconstitutionally seized and the degree of harm caused by its admission. The question of harmless error turns not on the reasons for inadmissibility but on the effect of the evidence in the context of a particular case. Erroneously admitted “constitutional” evidence may often be more prejudicial than erroneously admitted “unconstitutional” evidence. Since the harmless-error rule plainly affords no shield under which prosecutors might use damaging evidence, unconstitutionally obtained, to secure a conviction, there is no danger that application of the rule will undermine the prophylactic function of the rule of inadmissibility.
*95Cases in which this Court has held that the sufficiency of other evidence will not validate a conviction if an unconstitutionally obtained confession is introduced at trial, e. g., Malinski v. New York, 324 U. S. 401, are inapposite. It may well be that a confession is never to be considered as nonprejudicial. In any event, the standard applied here required a determination that exclusion of the unconstitutional evidence could not have changed the outcome of the trial. That is a much stricter standard than that of independently sufficient evidence, which leaves open the possibility that the trier of fact did rely on the unconstitutional evidence and, therefore, would have reached a different conclusion if the evidence had been excluded.2
I would affirm.
As the quoted portion of the opinion below shows, our Court, by relying on the petitioner’s statement that he would claim at a new trial that the unlawfully seized evidence induced his admissions and confession, accepts a claim which, apart from its lack of foundation in the record, is made for the first time here.
There is no need to consider whether a state or federal standard of harmless error governs, since the state standard applied here is as strict as any possible federal standard.