concurring in the judgment.
In my opinion the prosecutor’s closing argument was free of constitutional error. It is therefore unnecessary for this Court to consider the scope of the supervisory power of the *513federal appellate courts,1 and it is unjustifiable for the Court to decree that, upon examination of the record in this case, the error was harmless beyond a reasonable doubt.
Although the Government does not expressly challenge the Court of Appeals’ conclusion that the prosecutor’s comments were unconstitutional, both its petition and its brief on the merits question the correctness of that conclusion.2 Without conceding that the issue is properly before this Court, respondents devote several pages of their brief to the Fifth Amendment issue.3 That issue was raised and decided below and is clearly presented in the record. Further, both parties agree that, in determining whether the error was harmless, it is necessary to consider the content of the prosecutor’s alleged comment on the defendants’ silence and the likelihood that it affected the deliberations of the jury. Under these circumstances, whether or not the constitutionality of the prosecutor’s remarks is “fairly subsumed” in the question presented in the petition, I believe it proper for this Court to recognize that the Court of Appeals decided this question erroneously, and to reverse the judgment on that ground without considering the supervisory power or the harmless-error doctrine.4
*514In this case the five defendants presented 16 witnesses, who raised questions about some portions of the Government’s case but failed to deny or to contradict other portions. In reviewing the evidence adduced at the 5-day trial, the prosecutor identified the weaknesses in the defendants’ presentations and invited inferences from the main focus of the evidence presented by the five defendants. I believe that the prosecutor’s closing argument did not constitute improper comment on the defendants’ failure to testify.
The four young people involved in this case arrived at Millas’ Steak House at about midnight on October 11, 1979, in a car driven by one of the young women, who had apparently borrowed the car from her boyfriend. The driver and another of the young women went into the bar-restaurant and stayed two or three hours, drinking Pina Coladas and dancing, while the third young woman sat in the back seat of the car drinking beer with the young man. When they left Millas’ at approximately 3 a. m., the other young woman decided to drive. The car needed oil. Instead of turning right in the direction of their homes, along a highway that would bring them to at least one all-night gas station, they turned left. This route led them to a Clark station and then to the spot where they were forced off the road. Defense counsel emphasized these facts in an attempt to cast doubts on the victims’ ability to identify all of the defendants accurately, and to suggest the implausibility of their accounts.5 The *515prosecutor argued, quite properly in my opinion, that the defense had tried to divert the jury’s attention from the central question in the case — what happened after the car was forced off the road by defendants’ Cadillac. That central question could have been addressed by defense witnesses and defense counsel even without testimony by the defendants themselves.6
As I have written before, a defendant’s election not to testify “is almost certain to prejudice the defense no matter what else happens in the courtroom.” United States v. Davis, 437 F. 2d 928, 933 (CA7 1971). Under Griffin v. California, 380 U. S. 609 (1965), it is improper for either the court or the prosecutor to ask the jury to draw an adverse inference from a defendant’s silence. But I do not believe the protective shield of the Fifth Amendment should be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case. The comment in this record, ante, at 502, is not remotely comparable to the error in either Griffin7 or Wilson v. *516United States, 149 U. S. 60 (1893).8 In my opinion it did not violate either the Fifth Amendment or 18 U. S. C. § 3481 as construed in Wilson.
If I were persuaded that the prosecutor’s comment was improper, I could not possibly join the Court’s sua sponte harmless-error determination. In reviewing a federal criminal conviction, a federal appellate court should apply a stringent harmless-error test — more stringent than the test that is constitutionally permissible in state-court proceedings under Chapman v. California, 386 U. S. 18 (1967). A federal appellate court should not find harmless error merely because it believes that the other evidence is “overwhelming.” As we wrote in Kotteakos v. United States, 328 U. S. 750, 763-764 (1946):
“[I]t is not the appellate court’s function to determine guilt or innocence. . . . Nor is it to speculate upon probable reconviction and decide according to how the speculation comes out. . . . [T]he question is, not were [the jury] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.”
This Court is far too busy to be spending countless hours reviewing trial transcripts in an effort to determine the likeli*517hood that an error may have affected a jury’s deliberations. In this case the parties did not provide us with a printed appendix containing any portion of the trial testimony or with any of the trial exhibits that are discussed at some length in the transcript. I have spent several hours reviewing the one copy of the trial transcript that has been filed with the Court. But I have not read all of its 1,013 pages, and I have read only a few of the 450 pages of the transcript of the suppression hearing. The task of organizing and digesting the testimony is a formidable one. The victims’ testimony refers to the perpetrators by various descriptions — “the one with the goatee,” “the tall one,” “the skinnier one,” “the heavier set one,” “the bigger one,” “a stocky, heavy set guy,” “the fat one,” “the short, thinner one,” “the one in the big hat,” “the guy with the hair out,” “the guy with the fro,” the “shorter one with short hair,” the “skinnier one with the shorter hair,” “a younger guy,” “the guy with the smudged up nose,” “the smashed nose,” and “the ones that was in the back” — rather than by name. As a practical matter, it is impossible for any Member of this Court to make the kind of conscientious and detailed examination of the record that should precede a determination that there can be no reasonable doubt that the jury’s deliberations as to each defendant were not affected by the alleged error. And it is an insult to the Court of Appeals to imply, as the Court does today, that it cannot be trusted with a task that would normally be conducted on remand. Ante, at 510.
I have read enough to persuade me that there is a high probability that each of the defendants was correctly identified as a participant in the events of October 11, 1979. But I could not possibly state with anything approaching certainty that the 12 jurors who spent three hours deliberating the fate of these five defendants would not have entertained a reasonable doubt concerning at least one of the guilty verdicts if the error in question were purged from the record.
The Court states that there can be no question about the defendants’ guilt because the women “described in detail the *518repeated wanton acts of the defendants during three hours in two States, thus negating any doubt as to identification.” Ante, at 511. I would not characterize their testimony — particularly that relating to identification — as “detailed.”9 It is, of course, true that the witnesses had ample opportunity to observe their assailants, and that there is no reason to question their sincerity. But each of thé witnesses had different opportunities to view and identify the various defendants. Two of them could not identify one of the defendants in a lineup only a short time after the events took place.10 Indeed, although the witnesses testified at trial that there were five men in the car that forced them off the road, in a prior statement one or more of them had said that there were four.11 Hence the testimony at least leaves open the possibility of some confusion and some mistaken identification within the group.
I share the Court’s reaction to the offensive character of the misconduct involved in this case. I believe, however, that this factor enhances the importance of making sure that procedural safeguards are followed and that there is no reasonable doubt concerning the guilt of each one of the five accused individuals. I do not believe the prosecutor committed procedural error in this case; if he did, however, I feel strongly that this Court should not make a clumsy effort to avoid another trial by undertaking a function that can better be performed by other judges. We, of course, would not *519want any of the victims to go through the ordeal of testifying again unless reversible error has been committed. On the other hand, we surely would not want one of the defendants to spend 40 years in jail just because the evidence against the other four is overwhelming.
Because I believe that there was no constitutional error in the prosecutor’s remarks, I agree with the Court that the Fifth Amendment does not serve as a basis for reversal of these convictions. I concur in the Court’s judgment but not in its opinion.12
The Court of Appeals’ opinion, as Justice Brennan’s partial concurrence observes, does not expressly refer to the supervisory power, nor does it explain any of the factors that might have justified its exercise of that power. Under 'these circumstances, I agree with Justice Brennan that it is improper for this Court to reach out to enunciate general principles about the limits on the supervisory power of the federal courts.
See Pet. for Cert. 12, n. 10; Brief for United States 22-24, and n. 19.
Brief for Respondents 37-40.
See this Court’s Rule 21.1(a) (“Only the questions set forth in the petition or fairly included therein will be considered by the Court”); Rule 34.1(a) (“At its option, however, the Court may consider a plain error not among the questions presented but evident from the record and otherwise within its jurisdiction to decide”). When this Court reviews a decision by a lower federal court, the scope of the questions presented does not create any jurisdictional limitation on our consideration of the case. R. Robert*514son & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 418 (R. Wolfson & P. Kurland ed, 1951). Although we usually decline to address issues not expressly presented by the petition, we occasionally depart from this rule of practice. See, e. g., Procunier v. Navarette, 434 U. S. 555, 559-560, n. 6 (1978); Washington v. Davis, 426 U. S. 229, 238, and nn. 8, 9 (1976); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 320-321, n. 6 (1971).
See, e. g., Tr. 169-174, 192-193, 204-213, 249-257 (cross-examination of first young woman); 335-338, 342-344, 351-363, 369-374 (cross-examination of second young woman); 431-441, 448, 454, 462-465, 468-472, 497-502 (cross-examination of third young woman); 528-531, 536-540, 553-556, 562-564 (cross-examination of the young man); 884-885, 891-892, 902, *515933-935 (closing arguments). The defense counsel also attempted to undermine the Government’s case by pointing to vagueness and inconsistency in the witnesses’ accounts of the episode and their descriptions of the suspects.
Reference to uncontradicted portions of the Government’s evidence is improper only when the statement will naturally and necessarily be construed by the jury to be an allusion to the defendant’s failure to testify.
“ ‘He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.
“ ‘These things he has not seen fit to take the stand and deny or explain.
“ ‘And in the whole world, if anybody would know, this defendant would know.
“ ‘Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.’” 380 U. S., at 611.
“When the District Attorney, referring to the fact that the defendant did not ask to be a witness, said to the jury, T want to say to you, that if I am ever charged with crime, I will not stop by putting witnesses on the stand to testify to my good character, but I will go upon the stand and hold up my hand before high Heaven and testify to my innocence of the crime,’ he intimated to them as plainly as if he had said in so many words that it was a circumstance against the innocence of the defendant that he did not go on the stand and testify. Nothing could have been more effective with the jury to induce them to disregard entirely the presumption of innocence to which by the law he was entitled . . . .” 149 U. S., at 66.
For testimony regarding the descriptions of the suspects that the victims gave to the police, see Tr. of Suppression Hearing (“Plaintiff’s Witnesses”) 37, 119-120, 318-319; Tr. of Suppression Hearing (“Government Witness”) 6, 45-47, 55-56; Tr. 648. See generally id,., at 114-129, 295-310, 407-423.
Tr. Of Suppression Hearing (“Plaintiff’s Witnesses”) 105-107; Tr. 235.
Id., at 193, 215-216, 222-223, 485-486, 885, 903-904, 906. Asked on cross-examination about this discrepancy, the witness explained: “[M]y mind has really been confused and I have to really sit and look back on things because I have been trying to forget everything.” Id., at 193. The Clark station attendant testified that there were four black men in the Cadillac. Id., at 753.
The Court reverses and remands to permit consideration of any remaining contentions by respondents that were not treated in the Court of Appeals’ opinion, a disposition acknowledged by the Government to be appropriate. See Brief for United States 22, n. 18.