Opinion of the Court.

CHAPMAN ET AL. v. CALIFORNIA.

386 U.S.

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.

No. 95. Argued December 7-8, 1966.-Decided February 20, 1967. 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. 63 Cal. 2d 178, 404 P. 2d 209, reversed.

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.

MR. JUSTICE BLACK delivered the opinion of the Court. Petitioners, Ruth Elizabeth Chapman and Thomas LeRoy Teale, were convicted in a California state court

18

Opinion of the Court.

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 argument to the jury from beginning to end with numerous references to their silence and inferences of their guilt resulting therefrom. The trial court also charged the jury that it could draw adverse inferences from petitioners' failure to testify. 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, 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

1

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

2 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. . . ."

Opinion of the Court.

386 U.S.

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." We granted certiorari limited to these questions:

3

"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.

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.

I.

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

3 Cal. Const., Art. VI, § 41⁄2:

"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."

18

4

Opinion of the Court.

state or federal law governs. The application of a state harmless-error rule is, of course, a 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." Whether 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 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.

II.

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 hold

"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).

Opinion of the Court.

386 U.S.

ing, 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. § 2111.5 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.

III.

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.

528 U. S. C. § 2111 provides:

What

"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) provides:

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

See also Fed. Rule Civ. Proc. 61.