NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.16 Standard Of Review
                1.16  Standard Of Review
                         1.16.1  Direct vs. Collateral Review of Trial Error
                         1.16.2  Trial Error vs. Structural Error
                         1.16.3  Appellate Review Of Federal Habeas Corpus

The standard of review used to determine the merits of a federal constitutional claim depends on whether the claim is being reviewed by an appellate or habeas court.

In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court held that the standard for determining whether a verdict must be set aside because of a federal constitutional error is whether the error “was harmless beyond a reasonable doubt.” In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court limited the Chapman harmless error standard to direct review of constitutional error and announced a different harmless error standard for collateral habeas corpus review. Brecht adopted the standard set forth in Kotteakos v. United States, 328 U.S. 750 (1946), which is whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 776. The Brecht Court reasoned that the Kotteakos harmless error standard is better tailored to the nature and purpose of collateral review because application of a less onerous harmless error standard on collateral review promotes the considerations underlying habeas jurisprudence. The Court did not decide whether this less onerous harmless error standard also applies where the federal court is the first to determine that a constitutional error has occurred, although some circuits have since addressed that question.

In O’Neal v. McAninch, 513 U.S. 432 (1995), the Court further refined the Brecht harmless error standard holding that this standard does not place the burden of proof upon the petitioner to show that a trial error substantially affected the verdict. Rather, where the issue is evenly balanced and the judge has doubts about whether the error had “substantial and injurious effect” on the jury’s verdict, then the judge must treat the error as if it were not harmless and must rule for the petitioner.  

In California v. Roy, 519 U.S. 2 (1996), the Supreme Court ruled that the Ninth Circuit’s application of a modified O’Neal harmless error standard (“the omission is harmless only if review of the facts found by the jury establishes that the jury necessarily found the omitted element”) was too strict and remanded the case for further consideration in light of Brecht and O’Neal.

Calderon v. Coleman, 525 U.S. 141 (1998) (per curiam) (holding Ninth Circuit erred by failing to apply Brecht standard of review on habeas writ regarding sentencing instruction, applying Boyle standard of review instead, which finds constitutional error if there is a “reasonable likelihood” jury interpreted instruction to prevent consideration of constitutionally relevant evidence).

California v. Roy, 519 U.S. 2 (1996) (vacating and remanding Ninth Circuit en banc decision reversing murder convictions because of jury instruction error, ruling that Ninth Circuit incorrectly used stricter harmless error standard than that established in Brecht and O’Neal; remanded for consideration in light of those cases).

O’Neal v. McAninch, 513 U.S. 432 (1995) (rejecting Sixth Circuit interpretation of Brecht as shifting burden of proof of trial error to petitioner; holding where a federal habeas court finds a constitutional trial error and is in “grave doubt” about whether it had a substantial and injurious effect on verdict, error is not harmless).

Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding standard for determining whether habeas relief is warranted for state error in federal constitution is whether the error had a substantial and injurious effect or influence on the jury’s verdict).

Chapman v. California, 386 U.S. 18 (1967) (establishing harmless beyond a reasonable doubt standard for review of constitutional errors).

Kotteakos v. United States, 328 U.S. 750, 776 (1946) (setting forth harmless error standard of whether error had “substantial or injurious effect or influence on jury’s verdict”).

United States v. Montalvo, 331 F.3d 1052 (9th Cir. 2003) (holding in noncapital habeas case that Brecht harmless error standard applies to habeas cases under 28 USC 2255 as well as to cases under § 2254).

Mancuso v. Olivarez, 292 F.3d 939 (9th Cir. 2002) (holding that reviewing court must determine independently whether trial error had substantial and injurious effect, without consideration of burdens of proof).

Lambright v. Stewart, 191 F.3d 1181 (9th Cir. 1999) (en banc) (holding court did not need to reach whether constitutional error would have been structural or would have been subjected to harmless error review where court held that there is no per se constitutional error in the use of dual juries either in general or in this specific case), cert. denied, 534 U.S. 1188 (2002).

Tapia v. Roe, 189 F.3d 1052 (9th Cir. 1999) (holding court did not need to reach whether proper standard of review was the substantial and injurious effect or influence on the jury’s verdict standard under Brecht or the harmless beyond a reasonable doubt standard under Chapman where claim had not been reviewed on direct appeal and was presented for the first time on habeas corpus because the claim failed under both standards).

Mach v. Stewart, 137 F.3d 630 (9th Cir. 1998) (deciding that potential jurors’ statements which may have prejudiced entire panel constituted structural error, but not expressly holding so since the error was clearly not harmless even under Brecht).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (applying abuse of discretion standard on habeas where petitioner challenged impartiality of judge who presided over retrial where parties did not argue applicability of § 2254(d) (now § 2254(e)(1)), recognizing standard less vigorous than Brecht standard), cert. denied, 523 U.S. 1082 (1998).

Cox v. Norris, 133 F.3d 565 (8th Cir. 1997) (affirming view articulated in Harrington v. State of Iowa), cert. denied, 525 U.S. 834 (1998).

Hogue v. Johnson, 131 F.3d 466 (5th Cir. 1997) (holding that the Brecht standard applies on federal habeas review regardless of whether the states used the Chapman standard), cert. denied, 523 U.S. 1014 (1998).

Curtis v. Duval, 124 F.3d 1 (1st Cir. 1997) (applying Brecht standard even though state courts failed to use Chapman analysis).

Arnold v. Evatt, 113 F.3d 1352 (4th Cir. 1997) (subjecting jury viewing of crime scene without defense counsel’s presence to harmless error analysis under Brecht even though state courts did not review for harmless error under Chapman), cert. denied sub nom. Arnold v. Moore, 522 U.S. 1058 (1998).

Harrington v. State of Iowa, 109 F.3d 1275 (8th Cir. 1998) (applying Chapman standard of harmless error analysis where it was unclear if state courts conducted harmless error review).

Sherman v. Smith, 89 F.3d 1134 (4th Cir. 1996) (en banc) (holding Brecht standard for harmless error review applies in habeas corpus and other collateral proceedings even when state court on direct review failed to find error harmless beyond reasonable doubt under stricter Chapman standard).

Singletary v. Smith, 61 F.3d 815 (11th Cir. 1995) (applying O’Neal, finding Hitchcock error had substantial effect on verdict where court had “grave doubts” regarding impact of error), cert. denied, 516 U.S. 1140 (1996).

Smith v. Dixon, 14 F.3d 956 (4th Cir.) (en banc) (applying Brecht standard in habeas corpus proceeding where state court had conducted no harmless error analysis at all because it found no error), cert. denied, 513 U.S. 841 (1994).

Jennie Anest, Note, Brecht v. Abrahamson and Harmless Error: The Court Continues to Narrow Federal Habeas Corpus, 38 How. L.J. 201 (1994) (analyzing Brecht and Chapman standards and possibility of exception to Brecht standard).

James A. Carey, Jr., Note, Habeas Corpus–Harmless Error Rule–Proper Harmless Error Standard on Habeas Review of Fifth Amendment Violations is Whether the Error Had “Substantial or Injurious Effect” on the Jury’s Determination of Petitioner’s Guilt, 24 Seton Hall L. Rev. 1636 (1994) (analyzing Brecht v. Abrahamson in light of historical and modern harmless error jurisprudence).

Matthew T. Martens, Survey of Developments in North Carolina and the Fourth Circuit, 1994, Criminal Law: Smith v. Dixon: Was it Really Harmless?, 73 N.C. L. Rev. 2351 (1995) (analyzing Smith v. Dixon).

In Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court distinguished “trial errors” from “structural” errors in the context of constitutional rights violations stating that the former are subject to harmless error analysis but the latter requires automatic reversal. A “trial error” occurs during a case’s presentation to the trier of fact and “may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission is harmless beyond a reasonable doubt.” A structural defect, on the other hand, “affects the framework within which the trial proceeds” and therefore defies harmless error analysis. Thus, the Brecht distinction between harmless error standards applicable on direct or collateral review applies only to “trial errors” and is irrelevant to structural defects.

Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam) (holding that precedent did not support Sixth Circuit Court of Appeal’s conclusion that the failure of the state to charge in an indictment for aggravated murder in the course of committing aggravated robbery that defendant was a “principal” was the functional equivalent of “dispensing with the reasonable doubt requirement,” as prohibited by Sullivan v. Louisiana).

Sullivan v. Louisiana, 508 U.S. 275 (1993) (holding constitutionally deficient reasonable doubt instruction is structural defect requiring automatic reversal, not harmless error analysis).

Arizona v. Fulminante, 499 U.S. 279 (1991) (distinguishing trial error–error in the trial process itself–which is subject to harmless error analysis, from structural defect–affecting the framework within which the trial proceeds–which requires automatic reversal; holding involuntary confession is only trial error).

Rose v. Clark, 478 U.S. 570 (1986) (describing structural defect as an error such that the “criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair”).

Vasquez v. Hillery, 474 U.S. 254 (1986) (involving structural defect of unlawful exclusion of members of defendant’s race from grand jury).

Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (involving structural defect regarding right to public trial).

McKaskle v. Wiggins, 465 U.S. 168, 177–78, n.8 (1984) (involving structural defect regarding right to self-representation at trial).

Gideon v. Wainright, 372 U.S. 335 (1963) (involving structural defect of total deprivation of the right to counsel at trial).

Tumey v. Ohio, 273 U.S. 510 (1927) (involving structural defect of biased, nonimpartial judge).

Rich v. Calderon, 187 F.3d 1064 (9th Cir. 1999) (declining to extend Vasquez v. Hillery holding to apply to any source of pretrial bias), cert. denied sub nom. Rich v. Woodford, 528 U.S. 1092 (2000).

Mach v. Stewart, 137 F.3d 630 (9th Cir. 1998) (deciding that potential jurors statements which may have prejudiced entire panel constituted structural error, but not expressly holding so since the error was clearly not harmless even under Brecht).

Simmons v. Blodgett, 110 F.3d 39 (9th Cir.) (applying O’Neal, finding no showing that constitutional error occurred and thus no relief where factual issue of existence of constitutional trial error stands in “virtual equipoise”), cert. denied, 522 U.S. 892 (1997).

Rice v. Wood, 77 F.3d 1138 (9th Cir.) (holding trial court’s acceptance of jury’s death verdict in defendant’s absence constitutes “structural defect” in proceedings, requiring automatic reversal), cert. denied, 519 U.S. 873 (1996).

Suniga v. Bunnell, 998 F.2d 664 (9th Cir. 1993) (holding jury instruction error was structural defect, not subject to harmless error analysis).

Hays v. Arave, 977 F.2d 475 (9th Cir. 1992) (stating “unconstitutional in abstentia sentencing is a structural error” that cannot be affirmed on the basis of harmless error).

David Bowman, Note, A Matter of Life and Death: Revising the Harmless Error Standard for Habeas Corpus Proceedings, 72 Wash. L. Rev. 567 (1997) (analyzing obstacles to petitioner’s establishing magnitude of error sufficient for reversal under new harmless error doctrine and difficulties lower courts face in applying new doctrine).

The circuit court reviews de novo the denial of a state prisoner’s petition for federal habeas corpus, pursuant to 28 USC 2254 (1998). Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998).

See also § 6.3.1 for discussion of AEDPA’s standard of review when reviewing a state court decision reached on the merits.