dissenting.
Without the benefit of briefing or oral argument, the Court today vacates thé judgment of the Court of Appeals for the Ninth Circuit, affirming the decision of the District Court to issue a writ of habeas corpus. Because I believe that the rulings below were correct, and because I believe that important constitutional questions deserve more careful consideration than they have been accorded in this case, I dissent.
In 1971, George Jackson, a leader of the Black Panther Party, along with several other prisoners attempted to escape from San Quentin Prison. The plot was detected, and, in the course of the ensuing melee, Jackson, two other prisoners and three prison guards were killed. Respondent and five codefendants, all of whom allegedly were involved in the plan, were tried in a California court on charges of murder, conspiracy, and assault. One of the principal disputed issues in the case was the degree to which Jackson and the defendants had been assisted by members of the Black Panther Party “on the outside” in planning and executing the escape *132attempt. In an effort to assemble a jury capable of assessing impartially this and other controversial questions, the trial judge and defense counsel during voir dire questioned prospective jurors regarding their attitudes toward the Black Panthers and toward violent crimes in general. One of the members of the venire, Patricia Fagan, testified that she did not associate the Black Panthers with violence and that she did not have any personal knowledge of violent crime; Fagan was subsequently accepted as a juror.
After 13 months of trial, the defense called as a witness one Louis Tackwood, who testified that various law enforcement officers had plotted to encourage Jackson to escape. Allegedly, the police hoped to induce a group of Black Panthers to try to rescue Jackson, whereupon the police would ambush and kill the conspirators. Tackwood testified that Elmer “Gerónimo” Pratt was to be the leader of the rescue group, but that Pratt was also acting as a police informant. In an effort to impeach Tackwood’s testimony, the prosecution introduced evidence that, during the time in question, Pratt was incarcerated for a 1968 murder. Upon hearing this testimony, juror Fagan remembered that Carolyn Olson, one of her childhood friends,1 had been brutally murdered by mem*133bers of the Black Panther Party.2 Fagan feared that the 1968 murder that had just been discussed by the prosecutor was that of her friend.
Fagan went to the trial judge’s chambers and informed him of her suspicions. She told the judge that she might cry if Pratt’s prior crime were mentioned again in the courtroom. The judge indicated that it was unlikely that Pratt was her friend’s murderer. The judge asked Fagan whether her deliberations would be affected by what she had learned, and that Fagan indicated that they would not.3 The judge then admonished her to put the matter out of her mind.
That evening, Fagan called her mother and ascertained that Pratt was indeed the person who had been convicted of killing Carolyn Olson. The next morning, Fagan again went to the trial judge’s chambers: told him of her findings, and reiterated her fear that she would break down if the 1968 murder were discussed in court. As the judge later described their ensuing conversation: “I told her I didn’t see how that was significant, but did she feel it would have any effect on her disposition towards the case. She said that she did not accept that, she felt that if Mr. Pratt were called to testify, that she would be very unsettled by that.”4 As Fagan subsequently recollected the meeting, the judge then assured *134her that the lawyers probably would not delve further into the matter of Pratt’s prior crime, to which she responded “something to the effect, ‘O.K., no problem, then,’ meaning that the information regarding Pratt and my friend would have no adverse effect on me, and played no part in my evaluation of this case.”5
The judge made no record of either of his conversations with Fagan and did not inform respondent, defense counsel, or the prosecutor of what Fagan had told him. Sometime later, Fagan “mentioned] to other jurors that Pratt [had been] convicted of the murder of a friend,” but, “to the best of [her] recollection,” the subject was never again discussed among the jurors.6
Three aspects of the subsequent development of the trial are germane to the matters discussed by Fagan and the judge. First, on the Monday following the two ex parte meetings, a witness identified Pratt as “the leader of the Panthers in Los Angeles.” Second, only after the meetings in question did the defense introduce evidence of respondent’s membership in the Black Panther Party. Leaders of the party were called as witnesses, one of whom testified as to her association with respondent. Finally, in his closing argument, the prosecutor argued that “the Black Panther Party had helped to smuggle weapons or ammunition to Jackson and implied that [respondent’s] party membership was evidence that he, too, was ‘involved in’ the escape plan and ‘working with’ Jackson.”7
After 24 days of deliberation, the jury acquitted three of the six defendants on all counts. Two of the remaining defendants were convicted of assault. Respondent, the only defendant who was a member of the Black Panther Party, *135was convicted of two counts of murder and of conspiracy to escape.8 Respondent was sentenced to life imprisonment.
After the trial, respondent’s counsel was told by a third party about Fagan’s ex parte contacts with the trial judge. Respondent’s counsel went to Fagan’s home and interviewed her regarding the nature of her discussions with the judge. On the basis of what he learned from that conversation, respondent’s counsel moved for a new trial. The judge conducted a hearing on respondent’s motion. After giving his own account of the two meetings and discussing the incidents with counsel, the judge called Fagan as a witness. At the outset of the examination of Fagan, the judge told her that “it has been suggested that there is a potential that your testimony may disclose a violation of your oath of office as a juror in the case, and if that were to be true, you would potentially face possible criminal prosecution arising out of that.”9 The judge informed Fagan that she had a right not to incriminate herself and a right to have a lawyer present to advise her during questioning.10 Fagan then formally waived her right to an attorney,11 and the hearing proceeded.
In the course of the examination, respondent’s attorney at several points asked Fagan questions that related to the effect upon her deliberations in the case of her knowledge that her childhood friend had been murdered by a member of *136the Black Panther Party. At each point, the prosecutor successfully objected to the question on the ground that inquiry into the mental processes by which a juror reached a verdict is proscribed by Cal. Evid. Code Ann. § 1150(a) (West 1966).12 Fagan's testimony accordingly was limited to an account of what occurred in her meetings with the judge and to what she had known, believed, or felt at various points in the trial.13 None of the other jurors testified at the hearing.
*137On the basis of Fagan’s testimony and of his own recollection of the events at issue, the trial judge ruled that respondent had failed to demonstrate that he was prejudiced by the ex parte contacts14 and accordingly denied respondent’s motion for a new trial. The California Court of Appeal, in a divided opinion, affirmed on the ground that, although the secret contacts between Fagan and the trial judge gave rise to federal constitutional error,15 the error was harmless. The California Supreme Court denied review.
Respondent then petitioned the District Court for a writ of habeas corpus. 543 F. Supp. 757 (ND Cal. 1982). On the basis of a thorough and thoughtful analysis of the questions presented, the court issued the writ. The District Court agreed with the California appellate court that respondent’s constitutional rights to be present at critical stages of his trial and to be represented by counsel were violated by the conduct of the trial judge. The District Court then ruled, in the alternative, that the judge’s failure to make any record of his conversations with Fagan precluded application of the harmless-error standard of review and that the State had failed to establish that the error in question was harmless beyond a reasonable doubt.16 In a brief memorandum opinion, the Court of Appeals for the Ninth Circuit affirmed. Judg*138ment order reported at 701 F. 2d 186 (1983). The court reasoned that “[i]n this case the district court correctly concluded that the condition of the record made it impossible to apply intelligently the harmless error test.”17
h — I
The California Court of Appeal aptly observed that the issue in this case “arises at the confluence of three streams of constitutional doctrine, flowing from the right of defendants in criminal proceedings to trial by an impartial jury, their right to be personally present during the proceedings, and their right to be represented by an attorney.”18
The existence and importance of the three constitutional rights mentioned by the Court of Appeal are beyond dispute. “In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U. S. 717, 722 (1961); see also Turner v. Louisiana, 379 U. S. 466, 471-473 (1965). “It is now accepted . . . that an accused has a right to be present at all stages of the trial where his absence might frustrate the *139fairness of the proceedings, Snyder v. Massachusetts, 291 U. S. 97 [1934].” Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). “The Sixth Amendment provides that an accused shall enjoy the right ‘to have the Assistance of Counsel for his defense.’ This right, fundamental to our system of justice, is meant to assure fairness in the adversary criminal process. Our cases have accordingly been responsive to proved claims that governmental conduct has rendered counsel’s assistance to the defendant ineffective.” United States v. Morrison, 449 U. S. 361, 364 (1981) (citations omitted); see also Herring v. New York, 422 U. S. 853, 857 (1975) (acknowledging the applicability of these principles to state criminal proceedings).
What links these three doctrines in the instant case is that the adversary process ceases to work effectively when neither the defendant nor his attorney is informed of an event that may significantly affect the ability of a member of the jury impartially to weigh the evidence presented to him.19 Deprived of such information, the defendant and his counsel are unable to take measures either to ascertain whether the juror is indeed prejudiced (and, if so, to request his replacement by an alternate) or to organize the presentation of their case so as to offset or mitigate the juror’s potential bias. It *140matters little whether one characterizes the resultant injury to the defendant as a deprivation of the right to counsel, a violation of the “right to be present,” or an abridgment of the right to an impartial jury. The essence of the situation is that, when information that bears upon the ability of a juror to remain “indifferent” is withheld from the defendant and his counsel, the machine on which we rely to ensure that the defendant is not deprived of his liberty without due process of law breaks down.
It is undeniable that the information withheld from respondent bore significantly upon the ability of at least one juror to remain impartial. In her meetings with the trial judge, Fagan acknowledged that, in midtrial, she had remembered that a childhood friend had been murdered by a leader of an organization to which respondent belonged and other members of which were alleged to have conspired to commit the crime for which respondent was accused. Fagan further admitted that her recollection of her friend’s murder was sufficiently poignant that she was liable to break down if the event were mentioned again in the courtroom. The potential impact upon Fagan’s impartiality of her recently revived memories was enormous.20 Preservation of the pro*141cedural protections inherent in the adversary system made it essential that respondent or his lawyer be informed of the circumstances that had come to the judge’s attention. The judge’s failure to so inform respondent or his counsel was constitutional error.
H — ( H-1
The conclusion that respondent’s federal constitutional rights were violated does not dispose of this case. As all of the courts below recognized, respondent is not entitled to relief if it can be determined beyond a reasonable doubt that respondent suffered no harm as a result of the abridgment of his rights. Chapman v. California, 386 U. S. 18 (1967). As the District Court pointed out, two kinds of possible injuries must be assessed in applying the harmless-error standard to the facts of this case: injury to respondent resulting from the bias of one or more jurors and injury resulting from respondent’s loss of opportunity to correct, mitigate, or adjust to an alteration in the perspective of one or more jurors.
A
The first of these possible injuries was considered by the state courts. As the majority observes, the California Court of Appeal held that the prosecution had carried its burden to show, beyond a reasonable doubt, that “Fagan was not bi*142ased or prejudiced.”21 The majority argues that “[t]his finding of ‘fact’ — on a question the state courts were in a far better position than the federal courts to answer — deserves a 'high measure of deference,’ and may be set aside only if it 'lack[s] even “fair support” in the record.’” Ante, at 120 (citation omitted).
I assume, for the sake of argument, that the majority is correct in implying that the question whether a juror was biased is a matter of historical fact, rather than a mixed question of law and fact.22 I therefore proceed on the assumption that, if the Court of Appeal’s finding that Fagan was not biased was fairly supported by the record, the District Court was obliged to defer to that finding. Marshall v. Lonberger, *143459 U. S. 422, 432-435 (1983). However, for the reasons outlined by the District Court, it is clear that the state court’s finding on this crucial issue does not have “even ‘fair support’ in the record.”23
The California Court of Appeal expressly relied on three circumstances in concluding “beyond a reasonable doubt” that Fagan’s impartiality was unimpaired. None can withstand scrutiny.
First. The Court of Appeal emphasized that “Pratt figures, at most, tangentially in the case.”24 It is true that the *144testimony at trial pertaining to Pratt had little bearing on the question of respondent’s guilt or innocence. But Pratt’s participation in the escape attempt is not what is at stake in this appeal. The significance of the testimony pertaining to Pratt is that it triggered Fagan’s memory that Carolyn Olson had been murdered by a Black Panther. The District Court accurately analyzed the potential for harm to respondent resulting from the rejuvenation of Fagan’s recollection:
“From [respondent’s] perspective, the combination of Ms. Fagan’s knowledge, its emotional impact on her, and the trial testimony concerning Elmer Pratt’s leadership role in the Black Panther Party had potentially devastating implications. In a case concerning a violent series of events in which the Black Panther Party played a key role, . . . the defendant, though he did not know it, was being judged by a juror greatly distressed by memories of the violent death of her good friend at the hands of a person she knew to be a Black Panther Party member— a person shown by trial testimony to be a leader of that party. Extraordinary insight is not required to perceive the potential harm to [respondent] if Ms. Fagan’s personal experience, rather than the evidence at trial, were permitted to determine jurors’ assessments of [respondent’s] guilt or innocence.”25
For the reasons indicated by the District Court, the fact that Pratt himself did not figure prominently in the case provided no support for the state court’s finding of “no bias.”
Second. The Court of Appeal next pointed to “Fagan’s disclaimers as to any effect that Pratt’s murder of her friend might have on her consideration of the case.”26 In substantiating this reference, the Court of Appeal adverted to Fagan’s testimony at three stages of the trial. First, “[a]t the voir dire, Fagan testified that she did not associate the Black Pan*145ther Party with ‘any form of violence.”’27 Such testimony is clearly irrelevant to whether Fagan’s recollection of the fact that Olson was killed by a Black Panther — a recollection inconsistent with her statement at voir dire — affected her impartiality.
Next, the Court of Appeal noted that, “[d]uring her conversation with the trial judge regarding Pratt, the court asked her if the Pratt killing of her friend would affect her disposition toward the case and she replied that it would not.”28 As the District Court recognized, there are compelling reasons to discount the probative value of Fagan’s representations to the trial judge concerning her ability to remain impartial. Most importantly, her statements consist only of promises that, when it came time to deliberate on the case, she would not be affected by her recollection.29 Those promises were made before Fagan was exposed to testimony that Pratt was the leader of the Black Panther Party in Los Ange-les and to extensive testimony pertaining to respondent’s activities as a Party member, and before the prosecutor, in his closing argument, emphasized the common membership in the Party of Jackson, respondent, and their accomplices as evidence of their joint participation in the conspiracy to escape. Finally, the record and the factual findings by the state court indicate only that Fagan, in her two meetings *146with the trial judge, made simple declarations (the precise content of which neither Fagan nor the judge remembers) concerning her unimpaired impartiality. The judge made no effort to test Fagan’s assertions — to explore the basis for her confidence in her ability to look at the case through unjaundiced eyes. In sum, the statements made by Fagan in the two ex parte meetings provide little if any support for the finding of the Court of Appeal that Fagan’s deliberations were unaffected by her knowledge of Olson’s murder.
Finally, the Court of Appeal made some reference in its opinion to statements made by Fagan in the postconviction hearing regarding her impartiality. The court acknowledged, however, that the constraints imposed by Cal. Evid. Code Ann. § 1150(a) (West 1966) on the scope of the post-conviction inquiry prevented Fagan from testifying that she had in fact remained impartial. Indeed, the Court of Appeal noted that the few statements made by Fagan that arguably bear upon her mental processes in reaching her verdict30 “may well have been inadmissible,” and the court accordingly declined to rely on them.31 The only other relevant testimony made by Fagan in the hearing pertained to her state of mind at the time she met with the trial judge to discuss her revived recollection of her friend’s murder.32 That testimony *147is subject to the same infirmity as the state court’s finding regarding what was in fact said at those meetings: it pertains at most to Fagan’s disinterestedness at those moments and indicates nothing regarding her state of mind when it came time to render a verdict. The probative value of her statements at the hearing is further undercut by the fact that Fagan was aware that an admission that her impartiality had indeed been impaired might well subject her to criminal liability. In sum, as the Court of Appeal itself seems to have recognized, little if any support for a finding of lack of bias may be gleaned from Fagan’s testimony at the postconviction hearing.
Third. The Court of Appeal noted, finally, that “[i]n addition, we rely on the objective results of the jury deliberations as demonstrating that the jury, as a whole, and Fagan, in particular, were unbiased.”33 The court reasoned that the duration of the jury deliberations indicated that “the jury carefully considered and evaluated the evidence, rather than by reason of bias or prejudice, engaged in a rush to verdict” and that the results of those deliberations — the acquittal on *148all counts of three of the defendants, the conviction only for assault of two of the remaining defendants, and respondent’s acquittal of three counts of murder and one count of assault— indicated that the jury was impartial.34 The District Court’s response to the foregoing line of argument is compelling:
“Though the California Court of Appeal concluded that the fact that [respondent] was acquitted on some counts shows that the jury was not biased, . . . that very fact is subject to precisely the opposite inference. [Respondent] was the only defendant who was a member of the Black Panther Party and the only defendant convicted of conspiracy and murder. The only counts on which [respondent] was convicted were those with which he was connected, not by any direct participation in the acts of violence at San Quentin, but by his association and alleged conspiracy with George Jackson, also a Black Panther. All of the other defendants were acquitted of the conspiracy counts and the related substantive crimes. This pattern of convictions and acquittals, viewed from the perspective of the dangers posed by Ms. Fagan’s personal exposure and reaction to events linking the Black Panther Party to other violent crime, certainly raises a reasonable possibility that the information known by Ms. Fagan and communicated to other jurors influenced the verdicts.”35
In conclusion, none of the three circumstances relied upon by the California Court of Appeal provides significant support for its finding that the impartiality of Fagan and the other jurors was unaffected by Fagan’s recollection of her friend’s murder. By contrast, the potential for impairment of the jury’s impartiality was considerable. The murder case against respondent was founded on a theory of vicarious liability; respondent could be found guilty only if the jury de*149termined that he had joined an ongoing conspiracy to escape from the prison. As the Court of Appeal acknowledged, the evidence pertaining to whether there had existed such a conspiracy was closely balanced.36 One of the facts tending to show the existence of the conspiracy was the common membership in the Black Panther Party of the alleged conspirators. The risk that, in passing on this critical question, Fagan or the other jurors whom she told of her recollection would be affected by their knowledge that Fagan’s childhood friend had been murdered by a Party leader was severe. In view of the paucity of evidence of the absence of bias and the severity of the danger of bias, the District Court properly concluded that the state court’s finding “beyond a reasonable doubt” that no bias existed is not fairly supported by the record.
B
The second injury that respondent may have suffered as a result of the constitutional error committed by the trial judge is impairment of his ability to organize the presentation of his case to take into account the sensitivities of the jury.37 As the District Court recognized, had respondent or his counsel been told what occurred during the ex parte meetings, they might have acted in either of two ways (other than seeking Fagan’s replacement by an alternate juror) to minimize the potential adverse impact on their case of Fagan’s memory. First, they could have requested an instruction by the trial judge that Fagan not speak to the other jurors regarding the circumstances surrounding Olson’s death. Second, they might have decided not to present extensive evidence of respondent’s prominent role in the Black Panther Party. *150Either of these requests might have affected the outcome of the case.
The state courts made no finding concerning the injury to respondent that might have resulted from the denial of the opportunity to take these steps. The District Court concluded that the absence of any pertinent evidence in the record makes it impossible to conclude, beyond a reasonable doubt, that respondent suffered no harm of the sort described. It cannot be said that the District Court erred in making that determination.
HH <1
The District Court and Court of Appeals conscientiously applied the standard of review applicable to habeas corpus proceedings embodied in 28 U. S. C. § 2254(d). Examination of the papers that have been submitted to us reveals the conclusions reached by each of the federal judges who has considered this casé to be manifestly correct. Nevertheless, without affording respondent the opportunity to brief the issues presented, the Court summarily vacates the judgment below.
I dissent.
Fagan’s subsequent descriptions of the intimacy of her relationship with Olson varied somewhat. The California Court of Appeal resolved those discrepancies as follows: “Patricia Fagan had from the age of six or seven been a ‘good,’ ‘close,’ but not ‘best’ friend of Carolyn Olson. . . . Fagan cared for Olson’s daughter on a daily basis while Olson was attending U. C. L. A. in about 1962. At this time, the two women rarely visited socially. Fagan knew Olson’s husband.” People v. Spain, No. 1/Crim. 16126 (Cal. App. July 24,1980), reprinted in App. C to Pet. for Cert. 14-15 (hereafter App. C). In the absence of “convincing evidence” to the contrary, the foregoing findings — as well as all other findings by the state trial court and state appellate court that pertain to matters of historical fact— were binding on the District Court and are binding on us. Marshall v. Lonberger, 459 U. S. 422, 432-435 (1983); Sumner v. Mata, 455 U. S. 591, 592-593 (1982) (per curiam).
“The circumstances of the killing, as known to [Fagan], were that Olson and her husband were playing tennis when two people demanded their money, ordered them to lie down, and shot them.” People v. Spain, App. C, at 15; see also Tr. of Postconviction Hearing 23958 (Tr.).
Neither the judge’s preliminary account of this first meeting, nor Fagan’s first postconviction description of the encounter indicated that Fagan’s ability to remain impartial had been discussed. In their subsequent accounts, however, both parties maintained that the judge had questioned Fagan on this point and Fagan had indicated that her deliberations would be unaffected. The state appellate court credited Fagan’s and the judge’s later testimony, see People v. Spain, App. C, at 19-20, and the District Court was bound by the state court’s assessment of the conflicting evidence, see n. 1, supra.
Tr. 23920.
Affidavit of Patricia Fagan, Sept. 27,1976, District Court Record 5481-5482 (R.); see also People v. Spain, App. C, at 19-20.
R. 5482; see also People v. Spain, App. C, at 21.
Id., at 10.
Respondent’s conviction on the two counts of murder was based upon a theory of vicarious liability. It was not alleged that respondent himself killed anyone; rather, the prosecution argued that respondent had joined a conspiracy between Jackson and one Bingham to escape and that the murders were probable consequences of that conspiracy. All of respondent’s convictions thus turned upon the strength of his association with Jackson, and it was that association that the prosecutor sought to establish by stressing respondent’s and Jackson’s common membership in the Black Panther Party.
Tr. 23944.
Id., at 23944-23945.
Id., at 23945.
Section 1150(a) provides:
“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” The distinction drawn by the California rules between evidence of facts bearing upon the existence of any extraneous influence on the jury’s deliberations and evidence of the mental processes by which the jury reached a result is consistent with that drawn in most other jurisdictions. See, e. g., Mattox v. United States, 146 U. S. 140, 149 (1892).
The majority states that, at the postconviction hearing, “Fagan testified that . . . her subsequent recollection [of her friend’s death] did not affect her ability impartially to judge respondent’s innocence or guilt.” Ante, at 116. Later, the majority makes much of the fact that Fagan “repeatedly testified that, upon recollection, the incident did not affect her impartiality.” Ante, at 120-121. No such testimony can be found in the transcript of the postconviction hearing. The prosecutor and trial judge took care to prevent Fagan from answering any questions that pertained to the reasoning or motivations that induced her to conclude that respondent was guilty. See, e. g., Tr. 23965-23971. Indeed, Fagan did not even testify as to what she had told the judge during their ex parte meetings concerning the effect of her recollection upon her disposition toward the case. The only testimony at the hearing that pertained to their discussion of her impartiality was provided by the trial judge. His account of their conversations indicated (at most) that Fagan had assured him that she would remain impartial when it came time to render a verdict. See id., at 23919-23920. The judge’s description of what Fagan said during the meetings is corroborated by the affidavit that Fagan submitted to the trial *137court, see supra, at 133-134, and n. 5. But nothing in the record indicates whether Fagan was able to keep her promise that she would remain unbiased.
The District Court accurately characterized the state trial judge’s finding as an “implicit” conclusion that any error was harmless. See 543 F. Supp. 757, 771 (ND Cal. 1982), affirmance order, 701 F. 2d 186 (CA9 1983).
The Court of Appeal’s opinion is somewhat ambiguous on this issue. At one point the court suggested that it was simply assuming for the sake of argument that respondent had demonstrated federal constitutional error. See People v. Spain, App. C, at 23. At other points, the court seemed to vouch for the proposition that constitutional error had been shown. See id., at 23, n. 4, and 26-27. In any event, the District Court was obliged to determine this issue de novo.
543 F. Supp., at 768-777.
Spain v. Rushen, No. 82-4358 (CA9 Jan. 24,1983), reprinted in App. A to Pet. for Cert. 5. The majority characterizes the holding of the Court of Appeals as a ruling that “an unrecorded ex parte communication between trial judge and juror can never be harmless error.” Ante, at 117. Though the Court of Appeals’ decision is not altogether clear on this point, its reference to “this case” strongly suggests that it intended to rule only that, on the facts of the controversy before it, the potential for harm to respondent entailed by the secret meetings between Fagan and the trial judge was so great that something more than a postconviction hearing five months after the incidents in question was necessary to establish that the constitutional error was harmless. If the majority is truly concerned lest the Court of Appeals’ memorandum opinion be read more broadly, the proper disposition of the case would be to remand it with instructions to the Court of Appeals to clarify the basis of its decision, not summarily to vacate the decision on the ground that “[t]he lower federal courts should have . . . found the alleged constitutional error harmless beyond a reasonable doubt.” Ante, at 121.
People v. Spain, App. C, at 22-23.
The majority relies upon an assumption that “[tjhere is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. ” Ante, at 118. Whatever one thinks of the accuracy of the majority’s generalization regarding the frequency of contacts between judges and jurors, it has little to do with this case. At issue here is a pair of ex parte meetings between a trial judge and a juror in which the juror revealed to the judge facts that impinged significantly upon the juror’s impartiality — i. e., that bore upon the juror’s ability fairly to assess the defendant’s guilt or innocence. The question whether the judge had a constitutional obligation to tell the defendant or his lawyer what the juror had told him should not depend upon how often jurors approach judges to talk about matters of “personal comfort.” To the extent that the majority means to imply that judges and jurors may freely engage in ex parte discussions of “aspeet[s] of the trial,” I emphatically disagree.
The severity of the risk that Fagan would be unable impartially to assess the evidence presented to her — a risk that should have been apparent to the trial judge even at midtrial — distinguishes this case from Smith v. Phillips, 455 U. S. 209 (1982). Contrary to the suggestion of the majority, ante, at 119, n. 3, the facts of this case are significantly more “troublesome” than those of Smith. In Smith, the defendant and his counsel learned at voir dire that the juror in question hoped to pursue a career in law enforcement; defense counsel was nevertheless able to satisfy himself that the juror was unbiased and should be seated. At no point did the juror act in a way suggesting that his emotional outlook on the case was different from the outlook with which he began. Moreover, there was no direct link in Smith between the nature of the bias to which the juror was vulnerable and the substance of the contested issues in the ease. By contrast, in the instant case, Fagan’s revived memories were flatly inconsistent with her testimony at voir dire, Fagan clearly indicated to the judge the degree to which she was “unsettled” by her recollections, and the na*141ture of the potential prejudice to which she was exposed bore directly upon one of the principal disputed issues in the trial — namely, the existence and scope of a conspiracy among various members of the Black Panther Party inside and outside the prison to engineer Jackson’s escape.
Smith is readily distinguishable on other grounds as well: In contrast to this case, the trial judge in Smith did not learn of the circumstances that threatened the impartiality of the juror until after the defendant had been convicted. Again in contrast to this case, the defendant and his counsel in Smith were not denied access to any meetings between the trial judge and a juror. Thus, two of the constitutional rights implicated in this case — the right to the assistance of counsel and the right to be present at critical stages of the trial, see supra, at 138-140 — were not at issue in Smith. For an additional distinction between the two cases, see n. 23, infra.
People v. Spain, App. C, at 28.
There are good reasons to doubt the premise of the majority’s opinion — namely, that a determination, based solely on inferences drawn from objective circumstances, that a juror was not biased is no different from any other factual determination for the purpose of applying the standard of review embodied in 28 U. S. C. § 2254(d). As the California Court of Appeal acknowledged when it phrased its finding as a ruling that, “beyond a reasonable doubt,” Fagan was not prejudiced, the determination of this question is tantamount to a determination of the ultimate question whether the constitutional error was harmless, which is pre-eminently a matter of federal law, see Chapman v. California, 386 U. S. 18 (1967). If federal courts are obliged to defer to state-court findings of this order, the capacity of the federal courts through habeas proceedings to remedy deprivations of constitutional rights in state criminal trials will be substantially undercut. Sensitivity to these problems perhaps explains the majority’s decision to place in quotation marks its description of a determination of jury bias as a question of “fact.” Ante, at 120; see also Smith v. Phillips, supra, at 222, and n. (O’Connor, J., concurring) (In certain “exceptional situations,” in which objective circumstances cast considerable doubt on the impartiality of a juror, the federal courts may be obliged to apply a doctrine of “implied bias” and, in so doing, “need not be deterred by 28 U. S. C. § 2254(d)”).
The status under § 2254(d) of a state court’s ruling regarding a juror’s impartiality is precisely the kind of complex and important federal question that merits plenary consideration by this Court. Insofar as that question is critical to the outcome of this ease, it is irresponsible in my view for the majority to attempt to resolve the issue without even the benefit of briefing by the parties.
As the majority notes, the facts of this case bear some resemblance to those of Smith v. Phillips, and the majority relies upon the result reached in Smith to buttress its ruling that the District Court in the instant case should not have issued the writ of habeas corpus. Ante, at 118-119, and n. 3. I remain persuaded that the decision in Smith was incorrect. See Smith v. Phillips, 455 U. S., at 224 (Marshall, J., dissenting). It should be emphasized, however, that for two reasons Smith does not control this case. First, as indicated above, the potential impact in this case of events occurring in midtrial upon the impartiality of the jury is substantially greater than was true in Smith. See n. 20, supra. Second, the posture in which the question of jury bias arose in Smith is fundamentally different from the posture in which that issue is presented in this case. In Smith, the existence of a constitutional violation turned upon proof of actual impairment of the impartiality of the jury. The Court ruled that only if the defendant were able affirmatively to prove bias on the part of a juror could he establish a violation of due process. Concluding that the state court’s determination that the defendant had not proved bias was supported by the record and therefore was not vulnerable to review by the District Court, the majority in Smith held that no “constitutional violation” had been established and that the writ should not have issued. 455 U. S., at 221. In this case, by contrast, a constitutional violation occurred when the trial judge failed to inform respondent, defense counsel, or the prosecutor of what had transpired during the judge’s ex parte meetings with Fagan. See supra, at 138-141. Thus, the District Court was obliged to issue the writ unless the State could prove, beyond a reasonable doubt, that respondent had suffered no injury as a result of the judge’s constitutional error. The language used by the Court in Smith to define the burden a criminal defendant must sustain in order to prove an abridgment of his constitutional right to an impartial jury thus has no relevance to this case.
People v. Spain, App. C, at 24; see also id., at 35.
543 F. Supp., at 773.
People v. Spain, App. C, at 35.
Id., at 30-31.
Id., at 31-32.
It is worth noting that Fagan had powerful reasons for wanting to believe that she would be able to remain impartial. Her sudden recollection of the circumstances surrounding her friend’s murder occurred 13 months into the trial. Fagan was aware that her revived memory rendered untrue her responses at voir dire concerning her lack of personal knowledge of violence and her impression of the Black Panther Party. Most likely, she felt guilty that she had not recalled earlier the fact that Olson had been murdered by a Black Panther, and feared that the result of her lapse would be the declaration of a mistrial and the loss of 13 months of work. Under such conditions, it would have required extraordinary self-knowledge and courage for Fagan to tell the trial judge that she would not be able to examine impartially the evidence presented to her.
Those statements pertained to Fagan’s beliefs concerning such matters as the likelihood that a person who grew up in the Watts area would “black out” when confronted with violent crime and the probability that a criminal defendant who relies upon psychiatric testimony is guilty of the crime for which he is charged. See, e. g., Tr. 23966, 23968.
People v. Spain, App. C, at 33.
See Tr. 23957, 23977-23978. At one point in its discussion, the Court of Appeal argued that, “at the motion for a new trial where all appellants and their counsel were present, she testified that she associated the Black Panther Party with ‘worthwhile activities’ such as a breakfast program for school children carried on by the party.” People v. Spain, App. C, at 32. The court provides no citation for this statement, and no such statement appears in the transcript of Fagan’s examination at the hearing. In the *147affidavit she submitted to the trial court after the verdict, Fagan did make the following remark, to which the Court of Appeal may have been referring:
“My answers to [respondent’s counsel’s] questions [at voir dire] regarding the Black Panther Party . . . were and still are true and correct. My knowledge of the Black Panther Party was primarily limited to a breakfast program for school children conducted by that organization in the Los Angeles Area. Therefore, I associate the Black Panther Party with worthwhile activities.” R. 5482.
It is clear from the context that the foregoing statement pertained principally to Fagan’s honesty at voir dire (and was designed to protect her from criminal prosecution for violation of her oath of office). At most, the statement bears only tangentially on the issue of whether Fagan’s recollection of her friend’s murder affected her determination that respondent had joined with other members of the Black Panther Party in plotting the escape attempt.
People v. Spain, App. C, at 33.
Id., at 33-35.
543 F. Supp., at 776.
People v. Spain, App. C, at 5.
From this perspective, the trial judge’s failure to tell defense counsel of the ex parte meetings with Fagan is analogous to an order by a trial judge that defense counsel may not conduct a survey of the community from which the venire is drawn to determine the prevailing attitudes of the residents to certain controversial issues that may arise during the trial. Surely such an order would be deemed prejudicial error.