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No. 91-7358. Argued December 1, 1992-Decided April 21, 1993

At his first-degree murder trial in Wisconsin state court, petitioner Brecht admitted shooting the victim, but claimed it was an accident. In order to impeach this testimony, the State, inter alia, made several references to the fact that, before he was given his Miranda warnings at an arraignment, Brecht failed to tell anyone with whom he came in contact that the shooting was accidental. The State also made several references to his post-Miranda-warning silence in this regard. The jury returned a guilty verdict and Brecht was sentenced to life in prison, but the State Court of Appeals set the conviction aside on the grounds that the State's references to his post-Miranda silence violated due process under Doyle v. Ohio, 426 U. S. 610, and this error was sufficiently "prejudicial" to require reversal. The State Supreme Court reinstated the conviction, holding that the error was "'harmless beyond a reasonable doubt'" under the standard set forth in Chapman v. California, 386 U. S. 18, 24. The Federal District Court disagreed and set aside the conviction on habeas review. In reversing, the Court of Appeals held that the proper standard of harmless-error review was that set forth in Kotteakos v. United States, 328 U. S. 750, 776, i. e., whether the Doyle violation" 'had substantial and injurious effect or influence in determining the jury's verdict.''' Applying this standard, the court concluded that Brecht was not entitled to relief.


1. The Kotteakos harmless-error standard, rather than the Chapman standard, applies in determining whether habeas relief must be granted because of unconstitutional "trial error" such as the Doyle error at issue. Pp. 627-638.

(a) The State's references to Brecht's post-Miranda silence violated Doyle. The Doyle rule rests on the Miranda warnings' implicit assurance that a suspect's silence will not be used against him, and on the fundamental unfairness of using postwarning silence to impeach an explanation subsequently offered at trial. It is conceivable that, once Brecht was given his warnings, he decided to stand on his right to remain silent because he believed his silence would not be used against him at trial. The prosecution's references to his pre-Miranda silence



were, however, entirely proper. Such silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty. Pp. 627-629.

(b) Doyle error fits squarely into the category of constitutional violations characterized by this Court as "trial error." See Arizona v. Fulminante, 499 U. S. 279, 307. Such error occurs during the presentation of the case to the jury, and is amenable to harmless-error analysis because it may be quantitatively assessed in the context of other evidence to determine its effect on the trial. See id., at 307-308. This Court has consistently applied the Chapman standard in reviewing claims of constitutional error of the trial type on direct review of state and federal criminal proceedings. Pp. 629-630.

(c) It is for the Court to determine what harmless-error standard applies on collateral review of Brecht's Doyle claim. Although the Court has applied the Chapman standard in a handful of federal habeas cases, stare decisis does not preclude adoption of the Kotteakos standard here, since the decisions in question never squarely addressed, but merely assumed, Chapman's applicability on collateral review. Nor has Congress provided express guidance on the question. The federal habeas statute is silent as to the applicable standard, and while the federal harmless-error statute appears to echo the Kotteakos standard, it has been limited in its application to claims of nonconstitutional error in federal criminal cases. In line with the traditional rule, the Court finds no reason to draw inferences from Congress' failure to enact postChapman proposals that would have provided a less stringent harmlesserror standard on collateral review of constitutional error. Pp. 630-633.

(d) The Kotteakos standard is better tailored to the nature and purpose of collateral review than the Chapman standard, and is more likely to promote the considerations underlying this Court's recent habeas jurisprudence. In recognition of the historical distinction between direct review as the principal way to challenge a conviction and collateral review as an extraordinary remedy whose role is secondary and limited, the Court has often applied different standards on habeas than on direct review. It scarcely seems logical to require federal habeas courts to engage in the same approach that Chapman requires of state courts on direct review, since the latter courts are fully qualified to identify constitutional error and are often better situated to evaluate its prejudicial effect on the trial process. Absent affirmative evidence that statecourt judges are ignoring their oath, Brecht's argument is unpersuasive that such courts will respond to the application of Kotteakos on federal habeas by violating their Article VI duty to uphold the Constitution. In any event, the additional deterrent effect, if any, of applying Chapman on federal habeas is outweighed by the costs of that application,

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