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Fifth Circuit: Officer’s Testimony About CI’s Controlled Buy That He Did Not Personally Witness Violates Confrontation Clause

by Mark Wilson

The U.S. Court of Appeals for the Fifth Circuit vacated a Texas defendant’s drug conviction, concluding that the Government flouted his right to confront witnesses against him, in violation of Confrontation Clause. See Crawford v. Washington, 541 U.S. 36 (2004).

Kenneth Hamann and William Davis were standing outside an Odessa, Texas, motel room when police executed a search warrant for Hamann’s room. Investigators found about 17 grams of meth inside a truck near Hamann and about 150 grams in Davis’ backpack.

A federal grand jury charged Hamann with conspiracy to possess methamphetamine with intent to distribute between January 1, 2020, and February 25, 2020. The indictment also alleged two prior “serious drug felonies,” as a prerequisite to imposing a career offender sentence enhancement.

A bifurcated trial was held on the conspiracy charge. During the guilt phase, the prosecution introduced the testimony of Davis, four investigators, and two DEA chemists. One of the witnesses was Officer Malcolm Stanley, a Midland District Attorney’s Office investigator.

The prosecution claimed that Davis agreed to sell meth to Hamann after meeting him at the motel. Acknowledging in its opening statement that “obviously there have to be events leading up to the search warrant that caused the DEA to even be looking at Mr. Hamann,” the prosecutor claimed the Government had probable cause for the search warrant against Hamann because a confidential informant (“CI”) bought meth from him in a “controlled purchase” using government money.

Stanley then testified to cultivating a relationship with the CI who made the controlled purchase from Hamann in early 2020. Stanley claimed that the CI, who had “proven reliable for the DEA in the past,” told him that someone nicknamed “Cali” was “moving multiple ounces” of meth. He further testified that investigators had identified Hamann as “Cali” and that other agencies had heard from an unidentified declarant that Hamann “was selling narcotics.”

Stanley then testified about the CI’s controlled purchase that justified the search warrant. However, Stanley was not present at the motel during the controlled purchase and could not see any aspect of the events. Instead, another, non-testifying, law enforcement officer was watching the motel parking lot and describing what was happening to the other officers over the radio.

Despite having no personal knowledge of what transpired between Hamann and the CI during the controlled buy, Stanley testified about what the CI did when she arrived at the motel. However, he could have known this only from the non-testifying officer’s statements.

During closing arguments, the prosecutor summarized Stanley’s testimony about the CI’s controlled purchase from Hamann. The jury convicted Hamann, and the U.S. District Court for the Western District of Texas commenced the penalty phase. After hearing from Hamann’s probation officer, the jury found that he had been convicted of both alleged prior offenses. The court then sentenced Hamann to a 360-month career offender enhanced sentence. Hamann appealed.

The Fifth Circuit vacated the convictions, agreeing with Hamann that by incorporating nontestifying witness statements, Stanley’s testimony violated his rights under the Confrontation Clause of the Sixth Amendment.

The Court began its analysis by stating it ask three questions when determining whether there’s been a Confrontation Clause violation: “First, did the evidence introduce a testimonial statement by a nontestifying witness? Second, was any such statement offered to prove the truth of the matter asserted? Third, was the nontestifying witness available to testify, or was the defendant deprived of an opportunity to cross-examine him? If the answer to each of those questions is ‘yes,’ the Confrontation Clause was violated.” United States v. Kizzee, 877 F.3d 650 (5th Cir. 2017).

A testifying witness’ statement is testimonial if its “primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.” Id. Further, a witness’ statement at trial that implicates a nontestifying person’s statements, the content is testimonial if it “lead[s] to the clear and logical inference” that the nontestifying person believed that the defendant is guilty of the charged offense. Id.

Turning to the present case, the Court first determined that the prosecutor and Stanley “introduced testimonial evidence from” nontestifying witnesses – the CI and other law enforcement officers – when Stanley testified that the CI stated “Cali was moving multiple ounces” of meth together with Stanley’s testimony that fellow officers advised him that Cali is Hamann. Similarly, Stanley’s testimony about the controlled buy was based solely on the declarations of a nontestifying witness who purportedly relayed what was occurred over the radio. The Court explained that Stanley failed to testify to only matters within his personal knowledge, and in doing so, his testimony created the “clear and logical inference that out-of-court declarants believed and said that [Hamann] was guilty of the crime charged.” Quoting Kizzee.

Next, the Court then addressed the question of whether Stanley’s testimony at issue was offered to prove the truth of the matter asserted and concluded that it was, indeed, offered for that purpose by linking Hamann to the charged crime. It rejected the Government’s contention that Stanley’s testimony was provided simply to explain, by way of background information, the context of its investigation. The Court stated that there was no need to provide “inculpatory” context for the existence of its investigation.

In fact, the Court took this opportunity to once again warn the Government against “[b]ackdooring highly inculpatory hearsay via an explaining-the-investigation rationale.” United States v. Sharp, 6 F.4th 573 (5th Cir. 2021). The Court’s growing frustrating with the Government’s continued use of this tactic despite multiple warnings is clearly evident in the opinion, as evidenced by it taking the unusual step of providing the following admonition: “But we are concerned that the government has repeatedly failed to take the lesson. So let us be unequivocal: It is not ‘circumspect’ to introduce a statement accusing the defendant of selling ‘multiple ounces’ of meth. Nor is it ‘limited’ to give a play-by-play account of the defendant selling meth to a confidential informant. ... Although we decline, once again, to sanction an exception that would swallow that rule, we remind prosecutors to take note.” [internal citations omitted]

Finally, the Court determined that Hamann lacked the opportunity to cross-examine either the CI or the nontestifying officers Stanley relied upon when testifying about the issues in question. It based its determination on the fact that the Government failed to reveal the identity of the CI and that there’s no indication that Hamann questioned the nontestifying officers in a trial-like proceeding. Furthermore, the Government has not shown that the foregoing witnesses were unavailable, according to the Court.

Thus, the Court concluded that all three questions of the Kizzee Confrontation Clause framework have been answered in the affirmative, and so “Hamann established that Stanley’s testimony violated the Confrontation Clause.” In addition, the Government failed to establish that Stanley’s testimony amounted to harmless error. See Chapman v. California, 386 U.S. 18 (1967).

Accordingly, the Court vacated Hamann’s conviction and remanded the case. See: United States v. Hamann, 33 F.4th 759 (5th Cir. 2022). 

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Related legal cases

United States v. Hamann

Crawford v. Washington

541 U.S. 36; 124 S.Ct. 1354; 158 L.Ed.2d 177


No. 02-9410

November 10, 2003, Argued

March 8, 2004, Decided

NOTICE: [*1] This preliminary LEXIS version is unedited and subject to revision. The LEXIS pagination of this document is subject to change pending release of the final published version.


DISPOSITION: 147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.


Petitioner was tried for assault and attempted murder. The State sought to introduce a recorded statement that petitioner's wife Sylvia had made during police interrogation, as evidence that the stabbing was not in self-defense. Sylvia did not testify at trial because of Washington's marital privilege. Petitioner argued that admitting the evidence would violate his Sixth Amendment right to be "confronted with the witnesses against him." Under Ohio v. Roberts, 448 U.S. 56, that right does not bar admission of an unavailable witness's statement against a criminal defendant if the statement [*2] bears "adequate 'indicia of reliability,'" a test met when the evidence either falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." Id., at 66. The trial court admitted the statement on the latter ground. The State Supreme Court upheld the conviction, deeming the statement reliable because it was nearly identical to, i.e., interlocked with, petitioner's own statement to the police, in that both were ambiguous as to whether the victim had drawn a weapon before petitioner assaulted him.

Held: The State's use of Sylvia's statement violated the Confrontation Clause because, where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. Pp. 5-33.

(a) The Confrontation Clause's text does not alone resolve this case, so this Court turns to the Clause's historical background. That history supports two principles. First, the principal evil at which the Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused. The Clause's primary object is [*3] testimonial hearsay, and interrogations by law enforcement officers fall squarely within that class. Second, the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination. English authorities and early state cases indicate that this was the common law at the time of the founding. And the "right . . . to be confronted with the witnesses against him," Amdt. 6, is most naturally read as a reference to the common-law right of confrontation, admitting only those exceptions established at the time of the founding. See Mattox v. United States, 156 U.S. 237, 243. Pp. 5-21.

(b) This Court's decisions have generally remained faithful to the Confrontation Clause's original meaning. See, e.g., Mattox, supra. Pp. 21-23.

(c) However, the same cannot be said of the rationales of this Court's more recent decisions. See Roberts, supra, at 66. The Roberts test departs from historical principles because it admits statements consisting of ex parte testimony upon a mere reliability [*4] finding. Pp. 24-25.

(d) The Confrontation Clause commands that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Roberts allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability, thus replacing the constitutionally prescribed method of assessing reliability with a wholly foreign one. Pp. 25-27.

(e) Roberts' framework is unpredictable. Whether a statement is deemed reliable depends on which factors a judge considers and how much weight he accords each of them. However, the unpardonable vice of the Roberts test is its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Pp. 27-30.

(f) The instant case is a self-contained demonstration of Roberts' unpredictable and inconsistent application. It also reveals Roberts' failure to interpret the Constitution in a way that secures its intended constraint on judicial discretion. The Constitution prescribes the procedure for determining the reliability of testimony in criminal trials, and this Court, no less than the state courts, lacks authority [*5] to replace it with one of its own devising. Pp. 30-32.

147 Wash. 2d 424, 54 P. 3d 656, reversed and remanded.

JUDGES: SCALIA, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined.

OPINION: [*38] [**1356] Justice Scalia delivered the opinion of the Court.

Petitioner Michael Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. At his trial, the State played for [**1357] the jury Sylvia's tape-recorded statement to the police describing the stabbing, even though he had no opportunity for cross-examination. The Washington Supreme Court upheld petitioner's conviction after determining that Sylvia's statement was reliable. The question presented is whether this procedure complied with the Sixth Amendment's guarantee that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."


On August 5, 1999, Kenneth Lee was stabbed at his apartment. Police arrested petitioner later that night. After giving petitioner and his wife Miranda warnings, detectives interrogated each of them twice. Petitioner eventually confessed that he and Sylvia had gone in search of Lee [***185] because he was upset over an earlier incident in which Lee had tried to rape her. The two had found Lee at his apartment, and a fight ensued in which Lee was stabbed in the torso and petitioner's hand was cut.

Petitioner gave the following account of the fight:

"Q. Okay. Did you ever see anything in [Lee's] hands?

"A. I think so, but I'm not positive.

"Q. Okay, when you think so, what do you mean by that?

"A. I coulda swore I seen him goin' for somethin' before, right before everything happened. He was like [*39] reachin', fiddlin' around down here and stuff . . . and I just . . . I don't know, I think, this is just a possibility, but I think, I think that he pulled somethin' out and I grabbed for it and that's how I got cut . . . but I'm not positive. I, I, my mind goes blank when things like this happen. I mean, I just, I remember things wrong, I remember things that just doesn't, don't make sense to me later." App. 155 (punctuation added).

Sylvia generally corroborated petitioner's story about the events leading up to the fight, but her account of the fight itself was arguably different--particularly with respect to whether Lee had drawn a weapon before petitioner assaulted him:

"Q. Did Kenny do anything to fight back from this assault?

"A. (pausing) I know he reached into his pocket . . . or somethin' . . . I don't know what.

"Q. After he was stabbed?

"A. He saw Michael coming up. He lifted his hand . . . his chest open, he might [have] went to go strike his hand out or something and then (inaudible).

"Q. Okay, you, you gotta speak up.

"A. Okay, he lifted his hand over his head maybe to strike Michael's hand down or something and then he put his hands in his . . . put his right hand in his right pocket . . . took a step back . . . Michael proceeded to stab him . . . then his hands were like . . . how do you explain this . . . open arms . . . with his hands open and he fell down . . . and we ran (describing subject holding hands open, palms toward assailant).

"Q. Okay, when he's standing there with his open hands, you're talking about Kenny, correct?

"A. Yeah, after, after the fact, yes.

"Q. Did you see anything in his hands at that point?

[*40] "A. (pausing) um um (no)." Id., at 137 (punctuation added).

The State charged petitioner with assault and attempted murder. At trial, he claimed self-defense. Sylvia did not testify because of HN1the state marital privilege, which generally bars a spouse from testifying without the other spouse's consent. See Wash. Rev. Code § 5.60.060(1) (1994). [**1358] HN2In Washington, this privilege does not extend to a spouse's out-of-court statements admissible under a hearsay exception, see State v. Burden, 120 Wn. 2d 371, 377, 841 P.2d 758, 761 (1992), so the State sought to introduce Sylvia's tape-recorded statements to the police as evidence that the stabbing was not in self-defense. Noting that Sylvia had admitted she led petitioner to Lee's apartment and thus had facilitated [***186] the assault, the State invoked the hearsay exception for statements against penal interest, Wash. Rule Evid. 804(b)(3) (2003).

Petitioner countered that, state law notwithstanding, admitting the evidence would violate his federal constitutional right to be "confronted with the witnesses against him." Amdt. 6. According to our description of that right in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), it does not bar admission of an unavailable witness's statement against a criminal defendant if the statement bears "adequate 'indicia of reliability.'" Id., at 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531. To meet that test, evidence must either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." Ibid. The trial court here admitted the statement on the latter ground, offering several reasons why it was trustworthy: Sylvia was not shifting blame but rather corroborating her husband's story that he acted in self-defense or "justified reprisal"; she had direct knowledge as an eyewitness; she was describing recent events; and she was being questioned by a "neutral" law enforcement officer. App. 76-77. The prosecution played the tape for the jury and relied on it in closing, arguing that it was "damning evidence" that "completely [*41] refutes [petitioner's] claim of self-defense." Tr. 468 (Oct. 21, 1999). The jury convicted petitioner of assault.

The Washington Court of Appeals reversed. It applied a nine-factor test to determine whether Sylvia's statement bore particularized guarantees of trustworthiness, and noted several reasons why it did not: The statement contradicted one she had previously given; it was made in response to specific questions; and at one point she admitted she had shut her eyes during the stabbing. The court considered and rejected the State's argument that Sylvia's statement was reliable because it coincided with petitioner's to such a degree that the two "interlocked." The court determined that, although the two statements agreed about the events leading up to the stabbing, they differed on the issue crucial to petitioner's self-defense claim: "[Petitioner's] version asserts that Lee may have had something in his hand when he stabbed him; but Sylvia's version has Lee grabbing for something only after he has been stabbed." App. 32.

The Washington Supreme Court reinstated the conviction, unanimously concluding that, although Sylvia's statement did not fall under a firmly rooted hearsay exception, it bore guarantees of trustworthiness: "'[W]hen a codefendant's confession is virtually identical [to, i.e., interlocks with,] that of a defendant, it may be deemed reliable.'" 147 Wash. 2d 424, 437, 54 P. 3d 656, 663 (2002) (quoting State v. Rice, 120 Wn. 2d 549, 570, 844 P.2d 416, 427 (1993)). The court explained:

"Although the Court of Appeals concluded that the statements were contradictory, upon closer inspection they appear to overlap. . . .

"[B]oth of the Crawfords' statements indicate that Lee was possibly grabbing for a weapon, but they are equally unsure when this event may have taken place. They are also equally unsure how Michael received the cut on his hand, leading the court to question when, [***187] if ever, Lee possessed a weapon. In this respect they overlap.

[**1359] [*42] "[N]either Michael nor Sylvia clearly stated that Lee had a weapon in hand from which Michael was simply defending himself. And it is this omission by both that interlocks the statements and makes Sylvia's statement reliable." 147 Wash. 2d, at 438-439, 54 P. 3d, at 664 (internal quotation marks omitted). n1

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n1 The court rejected the State's argument that guarantees of trustworthiness were unnecessary since petitioner waived his confrontation rights by invoking the marital privilege. It reasoned that "forcing the defendant to choose between the marital privilege and confronting his spouse presents an untenable Hobson's choice." 147 Wash. 2d, at 432, 54 P. 3d, at 660. The State has not challenged this holding here. The State also has not challenged the Court of Appeals' conclusion (not reached by the State Supreme Court) that the confrontation violation, if it occurred, was not harmless. We express no opinion on these matters.

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We granted certiorari to determine whether the State's use of Sylvia's statement violated the Confrontation Clause. 540 U.S. 964, 157 L. Ed. 2d 309, 124 S. Ct. 460 (2003).


The Sixth Amendment's Confrontation Clause provides that, HN3"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." We have held that HN4this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). As noted above, Roberts says that an unavailable witness's out-of-court statement may be admitted so long as it has adequate indicia of reliability--i.e., falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." 448 U.S., at 66, 13 L. Ed. 2d 923, 85 S. Ct. 1065. Petitioner argues that this test strays from the original meaning of the Confrontation Clause and urges us to reconsider it.


The Constitution's text does not alone resolve this case. One could plausibly read "witnesses against" a defendant to [*43] mean those who actually testify at trial, cf. Woodsides v. State, 3 Miss. 655, 664-665, 1 Morr. St. Cas. 95 (1837), those whose statements are offered at trial, see 3 J. Wigmore, Evidence § 1397, p 104 (2d ed. 1923) (hereinafter Wigmore), or something in-between, see infra, at ____ - ____, 158 L. Ed. 2d, at 192-193. We must therefore turn to the historical background of the Clause to understand its meaning.

The right to confront one's accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int'l L. 481 (1994). The founding generation's immediate source of the concept, however, was the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses give testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768).

[***188] Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other officials examined suspects and witnesses before trial. These examinations were sometimes read in court in lieu of live testimony, a practice that "occasioned frequent demands by the prisoner to have his 'accusers,' i.e. the witnesses against him, brought before him face to face." 1 J. Stephen, History of the [**1360] Criminal Law of England 326 (1883). In some cases, these demands were refused. See 9 W. Holdsworth, History of English Law 216-217, 228 (3d ed. 1944);

Chapman v. California

386 U.S. 18; 87 S. Ct. 824; 17 L. Ed. 2d 705


No. 95

December 7-8, 1966, Argued

February 20, 1967, Decided

SUBSEQUENT HISTORY: Rehearing denied by Chapman v. California, 386 U.S. 987, 18 L. Ed. 2d 241, 87 S. Ct. 1283, 1967 U.S. LEXIS 1978 (1967)


CERTIORARI TO THE SUPREME COURT OF CALIFORNIA. People v. Teale, 63 Cal. 2d 178, 45 Cal. Rptr. 729, 404 P.2d 209, 1965 Cal. LEXIS 175 (1965)

DISPOSITION: 63 Cal. 2d 178, 404 P. 2d 209, reversed.


Petitioners were convicted following a California state criminal trial during which the prosecutor, as then permitted by a state constitutional provision, extensively commented on their failure to testify. The trial judge also charged the jury that it could draw adverse inferences from such failure. After the trial, but before petitioners' appeal was considered, the state constitutional provision was invalidated by Griffin v. California, 380 U.S. 609. Though admitting that petitioners had been denied a federal constitutional right, the California Supreme Court, applying the State Constitution's harmless-error provision, upheld the convictions. Held:

1. This Court has jurisdiction to formulate a harmless-error rule that will protect a defendant's federal right under the Fifth and Fourteenth Amendments to be free from state penalties for not testifying in his criminal trial. Pp. 20-21.

2. Before a constitutional error can be held to be harmless the court must be able to declare its belief that it was harmless beyond a reasonable doubt. Pp. 21-24.

3. The State in this case did not demonstrate beyond a reasonable doubt that the prosecutor's repetitive comments to the jury, and the trial court's instruction concerning the petitioners' failure to testify did not contribute to their convictions. Pp. 24-26.

COUNSEL: Morris Lavine argued the cause and filed briefs for petitioners.

Arlo E. Smith, Chief Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, and Raymond M. Momboisse, Deputy Attorney General.

JUDGES: Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas

OPINION: [*18] [***707] [**825] MR. JUSTICE BLACK delivered the opinion of the Court.

Petitioners, Ruth Elizabeth Chapman and Thomas LeRoy Teale, were convicted in a California state court [*19] upon a charge that they robbed, kidnaped, and murdered a bartender. She was sentenced to life imprisonment and he to death. At the time of the trial, Art. I, § 13, of the State's Constitution provided that "in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury." Both petitioners in this case chose not to testify at their trial, and the State's attorney prosecuting them took full advantage of his right under the State Constitution to comment upon their failure to testify, filling his [***708] argument to the jury from beginning to end with numerous references to their silence and inferences of their guilt resulting therefrom. n1 The trial court also charged the jury that it could draw adverse inferences from petitioners' failure to testify. n2 Shortly after the trial, but before petitioners' cases had been considered on appeal by the California Supreme Court, this Court decided Griffin v. California, 380 U.S. 609, [**826] in which we held California's constitutional provision and practice invalid on the ground that they put a penalty on the exercise of a person's right not to be compelled to be a witness against himself, guaranteed by the Fifth Amendment to the [*20] United States Constitution and made applicable to California and the other States by the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1. On appeal, the State Supreme Court, 63 Cal. 2d 178, 404 P. 2d 209, admitting that petitioners had been denied a federal constitutional right by the comments on their silence, nevertheless affirmed, applying the State Constitution's harmless-error provision, which forbids reversal unless "the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." n3 We granted certiorari limited to these questions:

"Where there is a violation of the rule of Griffin v. California, 380 U.S. 609, (1) can the error be held to be harmless, and (2) if so, was the error harmless in this case?" 383 U.S. 956-957.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 Excerpts of the prosecutor's argument are reproduced in the Appendix to this opinion.

n2 The trial judge charged the jury:

"It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely on his own decision. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. . . ."

n3 Cal. Const., Art. VI, § 4 1/2:

"No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."

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In this Court petitioners contend that both these questions are federal ones to be decided under federal law; that under federal law we should hold that denial of a federal constitutional right, no matter how unimportant, should automatically result in reversal of a conviction, without regard to whether the error is considered harmless; and that, if wrong in this, the various comments on petitioners' silence cannot, applying a federal standard, be considered harmless here.


Before deciding the two questions here -- whether there can ever be harmless constitutional error and whether the error here was harmless -- we must first decide whether [*21] state or federal law governs. The application of a state harmless-error rule is, of course, a [***709] state question where it involves only errors of state procedure or state law. But the error from which these petitioners suffered was a denial of rights guaranteed against invasion by the Fifth and Fourteenth Amendments, rights rooted in the Bill of Rights, offered and championed in the Congress by James Madison, who told the Congress that the "independent" federal courts would be the "guardians of those rights." n4 HN1Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied. With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights. We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment [**827] right to be silent -- expressly created by the Federal Constitution itself -- is a federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n4 "If they [the first ten amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1 Annals of Cong. 439 (1789).

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We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, [*22] as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for "errors or defects which do not affect the substantial rights of the parties." 28 U. S. C. § 2111. n5 None of these rules on its face distinguishes between federal constitutional errors and errors of state law or federal statutes and rules. All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. 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.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n5 28 U. S. C. § 2111 provides:

"On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties."

Fed. Rule Crim. Proc. 52 (a) HN3provides:

"Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

See also Fed. Rule Civ. Proc. 61.

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[***710] In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one. What [*23] harmless-error rules all aim at is a rule that will save the good in harmless-error practices while avoiding the bad, so far as possible.

The federal rule emphasizes "substantial rights" as do most others. The California constitutional rule emphasizes "a miscarriage of justice," n6 but the California courts have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court's view of "over-whelming evidence." n7 We prefer the approach of this Court HN4in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85. There we said: "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id., at 86-87. Although our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be [**828] treated as harmless error, n8 this statement in Fahy itself belies any belief that all trial errors which violate the Constitution automatically call for reversal. At the same time, however, like HN5the federal harmless-error statute, it emphasizes an intention not to treat as harmless those constitutional errors that "affect substantial rights" of a party. An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived [*24] of as harmless. Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason 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 reversal of his erroneously obtained judgment. n9 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 HN6before a federal [***711] 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, n10 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.

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n6 The California statutory rule, like the federal rule, provides that "after hearing the appeal, the Court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties." Cal. Pen. Code § 1258.

n7 The California Supreme Court in this case did not find a "miscarriage of justice" as to petitioner Teale, because it found from "other substantial evidence, [that] the proof of his guilt must bve deemed overwhelming." 63 Cal. 2d, at 197, 404 P. 2d, at 220.

n8 See, e. g., Payne v. Arkansas, 356 U.S. 560 (coerced confession); Gideon v. Wainwright, 372 U.S. 335 (right to counsel); Tumey v. Ohio, 273 U.S. 510 (impartial judge).

n9 See generally 1 Wigmore, Evidence § 21 (3d ed. 1940).

n10 Cf. Woodby v. Immigration Service, 385 U.S. 276.

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Applying the foregoing standard, we have no doubt that the error in these cases was not harmless to petitioners. To reach this conclusion one need only glance at the prosecutorial comments compiled from the record by petitioners' counsel and (with minor omissions) set forth in the Appendix. The California Supreme Court [*25] fairly summarized the extent of these comments as follows:

"Such comments went to the motives for the procurement and handling of guns purchased by Mrs. Chapman, funds or the lack thereof in Mr. Teale's possession immediately prior to the killing, the amount of intoxicating liquors consumed by defendants at the Spot Club and other taverns, the circumstances of the shooting in the automobile and the removal of the victim's body therefrom, who fired the fatal shots, why defendants used a false registration at a motel shortly after the killing, the meaning of a letter written by Mrs. Chapman several days after the killing, why Teale had a loaded weapon in his possession when apprehended, the meaning of statements made by Teale after his apprehension, why certain clothing and articles of personal property were shipped by defendants to Missouri, what clothing Mrs. Chapman wore at the time of the killing, conflicting statements as to Mrs. Chapman's whereabouts immediately preceding the killing and, generally, the overall commission of the crime." 63 Cal. 2d, at 196, [**829] 404 P. 2d, at 220.

Thus, the state prosecutor's argument and the trial judge's instruction to the j



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