Rose v. Clark

*585Justice Stevens,

concurring in the judgment.

The Court correctly concludes that the harmless-error standard of Chapman v. California, 386 U. S. 18 (1967), applies to the erroneous jury instructions in this case. I do not agree, however, with the Court’s dictum regarding the nature of harmless-error analysis.

I

According to the Court, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Ante, at 579. This statement stands in sharp contrast with the Court’s analysis in Chapman itself.

The principal question presented in Chapman was “whether there can ever be harmless constitutional error,” 386 U. S., at 20. Without questioning the view that constitutional error is always sufficiently serious to create a presumption in favor of reversal, the Court refused “to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful.” Id., at 21. Far from announcing any general principle that harmless-error analysis is the rule rather than the exception, the Court stated its holding in this language: “We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id., at 22.

Thereafter in its opinion, the Court emphasized that the burden of showing that constitutional error is harmless is heavier than the burden of showing that ordinary trial error is harmless. The Court noted that “the original common-law harmless error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a *586reversal of his erroneously obtained judgment.” Id., at 24. It then fashioned its constitutional rule by reference to its earlier decision in Fahy v. Connecticut, 375 U. S. 85 (1963), stating:

“There is little, if any, difference between our statement in Fahy v. Connecticut about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.” 386 U. S., at 24.

Rather than creating a broad, new presumption in favor of harmless-error analysis, then, Chapman merely rejected the notion that such analysis was always impermissible and articulated a rigorous standard for determining whether a presumptively prejudicial error could, in fact, be deemed harmless.

hH > — (

The Court’s statement about the “rule of harmless-error review, and the reasons for it, is neither an adequate explanation of our current case law nor a sound judgment about what harmless-error jurisprudence should be.

As the Court recognizes, harmless-error inquiry remains inappropriate for certain constitutional violations no matter *587how strong the evidence of guilt may be. Ante, at 577-578. See also Chapman, 386 U. S., at 23, n. 8. The Court suggests that the inapplicability of harmless error to these violations rests on concerns about reliability and accuracy, and that such concerns are the only relevant consideration in determining the applicability of harmless error. Ante, at 579. In fact, however, violations of certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial. Thus, racial discrimination in the selection of grand juries is intolerable even if the defendant’s guilt is subsequently established in a fair trial.1 Racial discrimination in the selection of a petit jury may require a new trial without any inquiry into the actual impact of the forbidden practice.2 The admission of a *588coerced confession can never be harmless even though the basic trial process was otherwise completely fair and the evidence of guilt overwhelming.3 In short, as the Court has recently emphasized, our Constitution, and our criminal justice system, protect other values besides the reliability of the guilt or innocence determination.4 A coherent harmless-error jurisprudence should similarly respect those values.

In addition to giving inadequate respect to constitutional values besides reliability, adopting a broad presumption in favor of harmless error also has a corrosive impact on the administration of criminal justice. An automatic application of harmless-error review in case after case, and for error after error, can only encourage prosecutors to subordinate the in*589terest in respecting the Constitution to the ever-present and always powerful interest in obtaining a conviction in a particular case.5 It is particularly striking to compare the Court’s apparent willingness to forgive constitutional errors that redound to the prosecutor’s benefit with the Court’s determination to give conclusive effect to trivial errors that obstruct a defendant’s ability to raise meritorious constitutional arguments.6

Both a proper respect for a range of constitutional values and the interest in an evenhanded approach to the administration of justice convince me that the Court’s dictum about a sweeping presumption in favor of harmless-error review is not only unnecessary, but also unsound.

I — I HH I — I

In this particular case, however, the primary constitutional value protected by our holdings in Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985), is an accurate determination of the defendant’s guilt or innocence. In my opinion, this is also not the kind of error with such an inherently imprecise effect that harmless-error inquiry is ill advised.7 It follows that the Federal Constitution does not command a rule of automatic reversal, and that the Court of Appeals should review the entire rec*590ord to determine whether it is able to declare a belief that the constitutional error was harmless beyond a reasonable doubt.8

Accordingly, I concur in the judgment.

See Vasquez v. Hillery, 474 U. S. 254, 262 (1986) (“[Ijntentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. Thus, the remedy we have embraced for over a century — the only effective remedy for this violation — is not disproportionate to the evil that it seeks to deter”). In Vasquez, the Court explicitly rejected the dissent’s suggestion that grand jury discrimination should be subject to harmless-error analysis because of a general principle that “a conviction should not be reversed for constitutional error where the error did not affect the outcome of the prosecution.” Id., at 269 (Powell, J., dissenting). See also Rose v. Mitchell, 443 U. S. 545 (1979).

See Batson v. Kentucky, 476 U. S. 79, 100 (1986) (“If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed”). See also Turner v. Murray, 476 U. S. 28, 37 (1986) (plurality opinion) (“The inadequacy of voir dire [about the possibility of racial prejudice] in this case requires that petitioner’s death sentence be vacated. . . . Our judgment in this case is that there was án unacceptable risk of racial prejudice infecting the capital sentencing proceeding”). In Turner, the Court explicitly rejected the dissent’s suggestion that the death sentence should stand because no actual jury prejudice was evident from the record. See *588id., at 47 (Powell, J., dissenting) (“Nothing in this record suggests that racial bias played any role in the jurors’ deliberations”).

See Payne v. Arkansas, 356 U. S. 560, 568 (1958) (“[TJhis Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment”); Chapman, 386 U. S., at 23, n. 8 (citing Payne as “coerced confession” case and example of constitutional error that may not be deemed harmless). See also Miller v. Fenton, 474 U. S. 104, 109 (1985) (“This Court has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment”).

See Allen v. Hardy, ante, at 259 (“By serving a criminal defendant’s interest in neutral jury selection procedures, the rule in Batson may have some bearing on the truthfinding function of a criminal trial. But the decision serves other values as well. Our holding ensures that States do not discriminate against citizens who are summoned to sit in judgment against a member of their own race and strengthens public confidence in the administration of justice. The rule in Batson, therefore, was designed to ‘serve multiple ends,’ only the first of which may have some impact on truthfinding”); Allen v. Illinois, ante, at 375 (“The privilege against self-incrimination enjoined by the Fifth Amendment is not designed to enhance the reliability of the factfinding determination; it stands in the Constitution for entirely independent reasons”).

Cf. United States v. Jackson, 429 F. 2d 1368, 1373 (CA7 1970) (Clark, J., sitting by designation) (‘“Harmless error’ is swarming around the 7th Circuit like bees. Before someone is stung, it is suggested that the prosecutors enforce Miranda to the letter and the police obey it with like diligence; otherwise the courts may have to act to correct a presently alarming situation”). See also United States v. Lane, 474 U. S. 438, 450-451, nn. 13 and 14 (1986) (Stevens, J., dissenting) (collecting authorities criticizing the impact of the Court’s recent expansive harmless-error jurisprudence).

See, e. g., Smith v. Murray, 477 U. S. 527 (1986).

Cf. Holloway v. Arkansas, 435 U. S. 475, 491 (1978) (harmless-error analysis inappropriate in assessing the constitutional error of joint representation in part because such an inquiry requires “‘unguided speculation’”); United States v. Lane, 474 U. S., at 474, and n. 16 (Stevens, J., dissenting).

A State, of course, remains free not to apply harmless-error review as a matter of state constitutional protections. See Delaware v. Van Arsdall, 475 U. S. 673, 701 (1986) (Stevens, J., dissenting); Connecticut v. Johnson, 460 U. S. 73, 88 (1983) (Stevens, J., concurring in judgment). Because the Court of Appeals for the Sixth Circuit is more familiar with Tennessee law than we are, it is appropriate for that court to consider the state of Tennessee law on this subject.