Brecht V. Abrahamson: Harmful Error in Habeas Corpus Law

By Liebman, James S.; Hertz, Randy | Journal of Criminal Law and Criminology, Spring 1994 | Go to article overview

Brecht V. Abrahamson: Harmful Error in Habeas Corpus Law


Liebman, James S., Hertz, Randy, Journal of Criminal Law and Criminology


I. INTRODUCTION: THE COURT'S NEW HARMLESS ERROR STANDARD FOR HABEAS CORPUS CASES

For the past two and one-half decades, the Supreme Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions.(1) Under that rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible,(2) the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt.(3) The Supreme Court adopted this stringent standard in Chapman v. California(4) to fulfill the federal courts' responsibility to "protect people from infractions by the States of federally guaranteed rights."(5) Although Chapman itself arose on direct appeal, the Court understood the decision's harmless error rule to be of constitutional magnitude(6) and, consistent with the principle of parity between direct and habeas corpus consideration of constitutional issues in the federal courts,(7) the Court repeatedly and routinely applied the same standard in habeas corpus proceedings.(8) So did the lower federal courts.(9)

In its 1993 decision in Brecht v. Abrahamson,(10) however, a bare majority of the Court ruled that a new and different measure of harmless error should apply in federal habeas corpus proceedings. The applicable standard is the one the Court fashioned in 1946 in Kotteakos v. United States(11) for assessing the harmlessness of nonconstitutional errors:(12) an error may be deemed harmless if the reviewing court finds that "the error did not influence the jury, or had but very slight effect"(13) and that "the judgment was not substantially swayed by the error."(14) Or, to use the phrase the Brecht Court most frequently extracted from Kotteakos, "the standard for determining whether habeas relief must be granted is whether the ... error 'had substantial and injurious effect or influence in determining the jury's verdict.'"(15)

To justify the newly drawn distinction between the harmless error rule that applies on direct appeal and the different one that applies in habeas corpus, the Brecht majority pointed to "the State's interest in the finality of convictions that have survived direct review within the state court system" and concerns of "comity and federalism."(16) It is difficult to see how these rationales justify Brecht's almost singular departure from over 200 years of direct appeal/habeas corpus parity in the scope and standard of review of constitutional issues.(17) As Justice O'Connor observed in her dissent in Brecht, the interests identified by the majority have little bearing on the choice of harmless error standard.(18) Rather, as Justice White and Justice O'Connor emphasized in dissent in Brecht, and as one member of the five-person majority seemed to acknowledge, the most significant, statutorily recognized interest bearing on the issue--the federal courts' obligation to vindicate federal constitutional rights and to protect criminal defendants from unconstitutional convictions and sentences--calls for restraint in finding constitutional errors to be harmless, whether the federal forum is direct review in the Supreme Court or habeas corpus review in the federal courts as a whole.(19)

On analysis, indeed, the Brecht limitation on the applicability of the Chapman rule may be as much an opening sally against the Chapman rule itself as it is an assault on the principle of direct appeal/habeas corpus parity. The Court thus may be setting the groundwork for a switch to the Kotteakos harmless error standard whenever a federal court finds constitutional trial error in any forum, whether on direct appeal or in postconviction proceedings.(20)

Prior to Brecht, the application of the harmless error rule in habeas corpus cases did not merit special comment. The rule applied in the same, well-established manner in those cases as on direct appeal in virtually all American courts with jurisdiction over criminal and constitutional matters.

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