SUPREME COURT OF THE UNITED STATES
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                                   No. 91-7358
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                     TODD A. BRECHT, PETITIONER v. GORDON A.
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                        ABRAHAMSON, SUPERINTENDENT, DODGE
                            CORRECTIONAL INSTITUTION
                       ON WRIT OF CERTIORARI TO THE UNITED
                     STATES COURT OF APPEALS FOR THE SEVENTH
                                     CIRCUIT
                                [April 21, 1993]
  JUSTICE STEVENS, concurring.
  The Fourteenth Amendment prohibits the deprivation of liberty "without due
process of law"; that guarantee is the source of the federal right to challenge
state criminal convictions that result from fundamentally unfair trial
proceedings.  Neither the term "due process," nor the concept of fundamental
unfairness itself, is susceptible of precise and categorical definition, and no
single test can guarantee that a judge will grant or deny habeas relief when
faced with a similar set of facts.  Every allegation of due process denied
depends on the specific process provided, and it is familiar learning that all
"claims of constitutional error are not fungible."  Rose v. Lundy, 455 U. S.
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509, 543 (1982) (STEVENS, J., dissenting).  As the Court correctly notes,
constitutional due process violations vary dramatically in significance;
harmless trial errors are at one end of a broad spectrum, and what the Court has
characterized as "structural" defects - those that make a trial fundamentally
unfair even if they do not affect the outcome of the proceeding - are at "the
other end of the spectrum," ante, at 8.  Although Members of the Court have
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disagreed about the seriousness of the due process violation identified in Doyle
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v. Ohio, 426 U. S. 610 (1976), in this case we unanimously agree that a
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constitutional

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2                             BRECHT v. ABRAHAMSON
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violation occurred; moreover, we also all agree that some version of harmless-
error analysis is appropriate.
  We disagree, however, about whether the same form of harmless-error analysis
should apply in a collateral attack as on a direct appeal, and, if not, what the
collateral attack standard should be for an error of this kind.  The answer to
the first question follows from our long history of distinguishing between
collateral and direct review, see, e.g., Sunal v. Large, 332 U. S. 174, 178
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(1947), and confining collateral relief to cases that involve fundamental
defects or omissions inconsistent with the rudimentary demands of fair
procedure.  See, e.g., United States v. Timmreck, 441 U. S. 780, 783 (1979),
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and cases cited therein.  The Court answers the second question by endorsing
Justice Rutledge's thoughtful opinion for the Court in Kotteakos v. United
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States, 328 U. S. 750 (1946). Ante, at 1, 17.  Because that standard accords
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with the statutory rule for reviewing other trial errors that affect substantial
rights; places the burden on prosecutors to explain why those errors were
harmless; requires a habeas court to review the entire record de novo in
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determining whether the error influenced the jury's deliberations; and leaves
considerable latitude for the exercise of judgment by federal courts, I am
convinced that our answer is correct.  I write separately only to emphasize that
the standard is appropriately demanding.
  As the Court notes, ante, at 10, n. 7, the Kotteakos standard is grounded in
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the 1919 federal harmless-error statute.  Congress had responded to the
widespread concern that federal appellate courts had become "impregnable
citadels of technicality," Kotteakos, 328 U. S., at 759, by issuing a general
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command to treat error as harmless unless it "is of such a character that its
natural effect is to prejudice a litigant's substantial rights."  Id., at
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760-761.  Kotteakos plainly stated that unless an error is merely "technical,"
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the burden of sustaining a verdict by demonstrating that the error was harmless
rests on the

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                              BRECHT v. ABRAHAMSON                             3
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prosecution. (Ftnote. 1)  A constitutional violation, of course, would never
             (Ftnote. 1)
fall in the "technical" category.
  Of particular importance, the statutory command requires the reviewing court
to evaluate the error in the context of the entire trial record.  As the Court
explained:  "In the final analysis judgment in each case must be influenced by
conviction resulting from examination of the proceedings in their entirety,
tempered but not governed in any rigid sense of stare decisis by what has been
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done in similar situations."  Id., at 762.
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  To apply the Kotteakos standard properly, the reviewing court must, therefore,
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make a de novo examination of the trial record.  The Court faithfully engages in
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such de novo review today, see ante, at 17-18, just as the plurality did in the
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dispositive portion of its analysis in Wright v. West, 505 U. S. ___, ___-___
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(1992) (opinion of THOMAS, J.) (slip op., at 17-18).  The Kotteakos requirement
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of de novo review of errors that prejudice substantial rights - as all
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constitutional errors surely do - is thus entirely consistent with the Court's
longstanding commitment to the de novo standard of review of mixed questions of
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law and fact in habeas corpus proceedings.  See Wright v. West, 505 U. S., at
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___-___ (O'CONNOR, J., concurring in judgment) (slip op., at 2-7).
                    
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   1)  "It is also important to note that the purpose of the bill in its final
   1)
form was stated authoritatively to be `to cast upon the party seeking a new
trial the burden of showing that any technical errors that he may complain of
have affected his substantial rights, otherwise they are to be disregarded.'
H. R. Rep. No. 913, 65th Cong., 3d Sess., 1.  But that this burden does not
extend to all errors appears from the statement which follows immediately.  `The
proposed legislation affects only technical errors.  If the error is of such a
character that its natural effect is to prejudice a litigant's substantial
rights, the burden of sustaining a verdict will, notwithstanding this
legislation rest upon the one who claims under it.'  Ibid.; Bruno v. United
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States, [308 U. S. 287, 294 (1939)]; Weiler v. United States, 323 U. S. 606, 611
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[(1945)]."  Kotteakos v. United States, 328 U. S. 750, 760-761 (1946).   
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  The purpose of reviewing the entire record is, of course,  to consider all the
ways that error can infect the course of a trial.  Although THE CHIEF JUSTICE
properly quotes the phrase applied to the errors in Kotteakos (" `substantial
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and injurious effect or influence in determining the jury's verdict' "), ante,
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at 1, 6, 16, 18, we would misread Kotteakos itself if we endorsed only a single-
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minded focus on how the error may (or may not) have affected the jury's verdict.
The habeas court cannot ask only whether it thinks the petitioner would have
been convicted even if the constitutional error had not taken
place. (Ftnote. 2)  Kotteakos is full of warnings to avoid that result.  It
       (Ftnote. 2)  _________
requires a reviewing court to decide that "the error did not influence the
jury," id., at 764, and that "the judgment was not substantially swayed by the
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error," id., at 765.  In a passage that should be kept in mind by all courts
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that review trial transcripts, Justice Rutledge wrote that the question is not
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   "were they [the jurors] right in their judgment, re-gardless of the error or
   its effect upon the verdict.  It is rather what effect the error had or
   reasonably may be taken to have had upon the jury's decision.  The crucial
   thing is the impact of the thing done wrong on the minds of other men, not on
   one's own, in the total setting.
     "This must take account of what the error meant to them, not singled out
   and standing alone, but in relation to all else that happened.  And one must
   judge others' reactions not by his own, but with allowance for how others
   might react and not be regarded generally as acting without reason.  This is
   the important difference, but one easy to ignore when the sense of guilt
   comes strongly from the record."
                    
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   2)  "The inquiry cannot be merely whether there was enough to support the
   2)
result, apart from the phase affected by the error."  Id., at 765.
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   Id., at 764 (citations omitted).
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  The Kotteakos standard that will now apply on collateral review is less
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stringent than the Chapman v. California, 386 U. S. 18 (1967), standard applied
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on direct review.  Given the critical importance of the faculty of judgment in
administering either standard, however, that difference is less significant than
it might seem - a point well illustrated by the differing opinions expressed by
THE CHIEF JUSTICE and by JUSTICE KENNEDY in Arizona v. Fulminante, 499 U. S.
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___, ___, ___ (1991).  While THE CHIEF JUSTICE considered the admission of the
defendant's confession harmless error under Chapman, see 499 U. S., at ___
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(dissenting opinion) (slip op., at 10-11), JUSTICE KENNEDY's cogent analysis
demonstrated that the error could not reasonably have been viewed as harmless
under a standard even more relaxed than the one we announce today.  See id., at
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___ (opinion concurring in judgment) (slip op., at 1-2).  In the end, the way we
phrase the governing standard is far less important than the quality of the
judgment with which it is applied.
  Although our adoption of Kotteakos does impose a new standard in this context,
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it is a standard that will always require "the discrimination . . . of judgment
transcending confinement by formula or precise rule.  United States v. Socony-
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Vacuum Oil Co., 310 U. S. 150, 240 [(1940)]."  (Ftnote. 3) 328 U. S., at 761. 
                                               (Ftnote. 3)
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In my own judgment, for the reasons explained by THE CHIEF JUSTICE, the Doyle
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error that took place in respondent's trial did not have a substantial and
injurious effect or influence in determining the jury's
                    
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   3)  Justice Rutledge continued: "That faculty cannot ever be wholly
   3)
imprisoned in words, much less upon such a criterion as what are only technical,
what substantial rights; and what really affects the latter hurtfully.
Judgment, the play of impression and conviction along with intelligence, varies
with judges and also with circumstance.  What may be technical for one is
substantial for another; what minor and unimportant in one setting crucial in
another."  Id., at 761.
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verdict.  Accordingly, I concur in the Court's opinion and judgment.