NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 3: Capital Punishment Handbook: Guilt Phase Issues

        3.1  Standard Of Collateral Review For Constitutional Trial Errors

The Supreme Court has held that a federal court can grant habeas relief on a constitutional trial error claim only if the error had a “substantial or injurious effect” on the jury’s verdict in deciding whether a constitutional trial error is harmless. Brecht v. Abrahamson, 507 U.S. 619 (1993). The Court further refined the harmlessness standard of Brecht, holding that the 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 a “substantial and injurious effect” on the jury’s verdict, then the judge must treat the error as if it were not harmless. O’Neal v. McAninch, 513 U.S. 432 (1995). 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.