CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to review the reversal of respondents' convictions because of prosecutorial allusion to their failure to rebut the Government's evidence.
On October 11, 1979, in the vicinity of East St. Louis, Ill., three young women and a man, Randy Newcomb, were riding in an automobile when a turquoise Cadillac forced them off the road. The occupants of the Cadillac, later identified as Napoleon Stewart, Gregory Williams, Gable Gibson, Kevin Anderson, and Kelvin Hasting, respondents here, forcibly removed the women from the car in which they were riding with Newcomb; in Newcomb's presence, Stewart and Gibson immediately raped one of them and forced her to perform acts of sodomy. Newcomb was left behind while the three women were then taken in the Cadillac to a vacant garage in St. Louis, Mo.; there they were raped and forced to perform deviant sexual acts. Two of the women were then taken to Stewart's home where Stewart and Williams took turns raping and sodomizing them. The third victim was taken in a separate car to another garage where the other respondents repeatedly raped her and compelled her to perform acts of sodomy.
About 6 a. m., the three women were released and they immediately contacted the St. Louis police; they furnished descriptions of the five men, the turquoise Cadillac, and the locations of the sexual attacks. From these descriptions, the police immediately identified one of the places to which the women were taken — the home of respondent Napoleon Stewart. With the consent of Stewart's mother, police entered the home, arrested Stewart, and found various items of the victims' clothing and personal effects. The turquoise Cadillac was located, seized, and found to be registered to Williams. On the basis of the information gathered, the police arrested Williams, Gibson, Anderson, and Hasting, all of whom were later identified by the victims during police lineups.
Respondents were charged with kidnaping in violation of 18 U. S. C. § 1201(a)(1), transporting a woman across state lines for immoral purposes in violation of the Mann Act, 18
At the close of the case, and during the summation of the prosecutor, the following interchange took place:
On appeal, various errors were alleged, including a claim that the prosecutor violated respondents' Fifth Amendment rights under Griffin v. California, 380 U.S. 609 (1965).
The opinion of the Court of Appeals does not make entirely clear its basis for reversing the convictions in this gruesome case. Its cursory treatment of the harmless-error question and its focus on the failure generally of prosecutors within its jurisdiction to heed the court's prior admonitions about commenting on a defendant's failure to rebut the prosecution's case suggest that, notwithstanding the harmless nature of the error, the court acted in this case to discipline the prosecutor — and warn other prosecutors — for what it perceived to be continuing violations of Griffin and § 3481. The court pointedly emphasized its own decision in United States v. Rodriguez, 627 F.2d 110 (1980), where it characterized the problem of prosecutorial comments on a defendant's silence as one which "continues to arise with disturbing frequency throughout this circuit despite the admonition of trial judges and this court," id., at 112.
In Rodriguez, the court described its efforts to cure the problem by ordering circulation to all United States Attorneys of an unpublished order calling attention to the subject. In addition, the Rodriguez court discussed, without explicitly adopting, the rule announced by the First Circuit in United States v. Flannery, 451 F.2d 880, 882 (1971), that any prosecutorial reference to a defendant's failure to testify is per se
"[G]uided by considerations of justice," McNabb v. United States, 318 U.S. 332, 341 (1943), and in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory powers are threefold: to implement a remedy for violation of recognized rights, McNabb, supra, at 340; Rea v. United States, 350 U.S. 214, 217 (1956); to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, McNabb, supra, at 345; Elkins v. United States, 364 U.S. 206, 222 (1960); and finally, as a remedy designed to deter illegal conduct, United States v. Payner, 447 U.S. 727, 735-736, n. 8 (1980).
To the extent that the values protected by supervisory authority are at issue here, these powers may not be exercised in a vacuum. Rather, reversals of convictions under the court's supervisory power must be approached "with some
Since the Court of Appeals focused its attention on Griffin rather than Chapman, an appropriate starting point is to recall the sequence of these two cases. Griffin was decided first. In that case, a California prosecutor, in accordance with a provision of the California Constitution, commented to the jury on a defendant's failure to provide evidence on matters that only he could have been expected to deny or explain. In reliance on Wilson v. United States, 149 U.S. 60 (1893), the Griffin Court interpreted the Fifth Amendment guarantee against self-incrimination to mean that comment on the failure to testify was an unconstitutional burden on the basic right. Accordingly, the Court held that the constitutional
Soon after Griffin, however, this Court decided Chapman v. California, which involved prosecutorial comment on the defendant's failure to testify in a trial that had been conducted in California before Griffin was decided. The question was whether a Griffin error was per se error requiring automatic reversal or whether the conviction could be affirmed if the reviewing court concluded that, on the whole record, the error was harmless beyond a reasonable doubt. In Chapman this Court affirmatively rejected a per se rule.
After examining the harmless-error rules of the 50 States along with the federal analog, 28 U. S. C. § 2111, the Chapman Court stated:
In holding that the harmless-error rule governs even constitutional violations under some circumstances,
Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations, see, e. g., Brown, supra, at 230-232; Harrington v. California, 395 U.S. 250 (1969); Milton v. Wainwright, 407 U.S. 371 (1972). The goal, as Chief Justice Traynor has noted, is "to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error." Traynor, supra, at 81.
Here, the Court of Appeals, while making passing reference to the harmless-error doctrine, did not apply it. Its analysis failed to strike the balance between disciplining the prosecutor on the one hand, and the interest in the prompt administration of justice and the interests of the victims on the other.
We turn, then, to the question whether, on the whole record before us, the error identified by the Court of Appeals was harmless beyond a reasonable doubt. Although we are not required to review records to evaluate a harmless-error claim, and do so sparingly, we plainly have the authority to do so.
The question a reviewing court must ask is this: absent the prosecutor's allusion to the failure of the defense to proffer
Paradoxically, respondents relied for their defense on a claim of mistaken identity, yet they tendered no evidence placing any of them at other places at the relevant times. The evidence presented by them was testimony showing (a) that some of respondents' hairstyles immediately before and after the incident differed from the victims' descriptions of their assailants' appearances, (b) that two of the victims had been unable to pick one of the respondents, Anderson, out of a lineup, (c) that it was so dark at the time of the attacks and during the car trips, that Newcomb did not have an unobstructed view of the rape he described, and (d) that Stewart's mother testified that the girls she saw with her son did not look "scared." Finally, the defense intimated that the victims crossed state lines voluntarily by raising the possibility
In the face of this overwhelming evidence of guilt and the inconsistency of the scanty evidence tendered by the defendants, it is little wonder that the Court of Appeals referred to "the crimes committed" and acknowledged the "clear evidence of guilt." Of course, none of these hard realities would ever constitute justification for prosecutorial misconduct, but here, accepting the utterance of the prosecutor as improper, criticism of him could well be directed more accurately at his competence and judgment in jeopardizing an unanswered — and unanswerable — case. On the whole record, we are satisfied beyond a reasonable doubt that the error relied upon was harmless.
The judgment of the Court of Appeals, ordering a new trial based on the prosecutor's argument, is reversed. Because other contentions were advanced by respondents that were not treated in the court's opinion, we remand to allow the Court of Appeals to consider such other claims if respondents elect to press them.
Reversed and remanded.
JUSTICE BLACKMUN would vacate the judgment of the Court of Appeals and remand the case for consideration by that court of the issue whether the Fifth Amendment violation it perceived to exist was harmless error within the measure of Chapman v. California, 386 U.S. 18 (1967).
JUSTICE STEVENS, concurring in the judgment.
In my opinion the prosecutor's closing argument was free of constitutional error. It is therefore unnecessary for this Court to consider the scope of the supervisory power of the
Although the Government does not expressly challenge the Court of Appeals' conclusion that the prosecutor's comments were unconstitutional, both its petition and its brief on the merits question the correctness of that conclusion.
The four young people involved in this case arrived at Millas' Steak House at about midnight on October 11, 1979, in a car driven by one of the young women, who had apparently borrowed the car from her boyfriend. The driver and another of the young women went into the bar-restaurant and stayed two or three hours, drinking Pina Coladas and dancing, while the third young woman sat in the back seat of the car drinking beer with the young man. When they left Millas' at approximately 3 a. m., the other young woman decided to drive. The car needed oil. Instead of turning right in the direction of their homes, along a highway that would bring them to at least one all-night gas station, they turned left. This route led them to a Clark station and then to the spot where they were forced off the road. Defense counsel emphasized these facts in an attempt to cast doubts on the victims' ability to identify all of the defendants accurately, and to suggest the implausibility of their accounts.
As I have written before, a defendant's election not to testify "is almost certain to prejudice the defense no matter what else happens in the courtroom." United States v. Davis, 437 F.2d 928, 933 (CA7 1971). Under Griffin v. California, 380 U.S. 609 (1965), it is improper for either the court or the prosecutor to ask the jury to draw an adverse inference from a defendant's silence. But I do not believe the protective shield of the Fifth Amendment should be converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case. The comment in this record, ante, at 502, is not remotely comparable to the error in either Griffin
If I were persuaded that the prosecutor's comment was improper, I could not possibly join the Court's sua sponte harmless-error determination. In reviewing a federal criminal conviction, a federal appellate court should apply a stringent harmless-error test — more stringent than the test that is constitutionally permissible in state-court proceedings under Chapman v. California, 386 U.S. 18 (1967). A federal appellate court should not find harmless error merely because it believes that the other evidence is "overwhelming." As we wrote in Kotteakos v. United States, 328 U.S. 750, 763-764 (1946):
This Court is far too busy to be spending countless hours reviewing trial transcripts in an effort to determine the likelihood
I have read enough to persuade me that there is a high probability that each of the defendants was correctly identified as a participant in the events of October 11, 1979. But I could not possibly state with anything approaching certainty that the 12 jurors who spent three hours deliberating the fate of these five defendants would not have entertained a reasonable doubt concerning at least one of the guilty verdicts if the error in question were purged from the record.
The Court states that there can be no question about the defendants' guilt because the women "described in detail the
I share the Court's reaction to the offensive character of the misconduct involved in this case. I believe, however, that this factor enhances the importance of making sure that procedural safeguards are followed and that there is no reasonable doubt concerning the guilt of each one of the five accused individuals. I do not believe the prosecutor committed procedural error in this case; if he did, however, I feel strongly that this Court should not make a clumsy effort to avoid another trial by undertaking a function that can better be performed by other judges. We, of course, would not
Because I believe that there was no constitutional error in the prosecutor's remarks, I agree with the Court that the Fifth Amendment does not serve as a basis for reversal of these convictions. I concur in the Court's judgment but not in its opinion.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.
In this case the Court of Appeals issued an opinion reversing the convictions of the respondents. 660 F.2d 301 (CA7 1981). Most of the opinion consists of a discussion of the facts. Id., at 301-303. In its brief legal analysis, the court relied on its decision in United States v. Buege, 578 F.2d 187 (1978), to find that the prosecutor had violated the respondent's Fifth Amendment rights by commenting on their failure to testify. 660 F. 2d., at 303. The court declined to apply the harmless-error doctrine to this violation. The court stated that an application of the doctrine "would impermissibly compromise the clear constitutional violation of [respondents'] Fifth Amendment rights." Ibid.
On its face, the Court of Appeals' opinion adopts a rule of automatic reversal for improper prosecutorial comment on a defendant's failure to testify. Such a rule was rejected by this Court in Chapman v. California, 386 U.S. 18, 22 (1967). The respondents argue that the Court of Appeals' decision to disregard Chapman was justified as an exercise of the court's supervisory powers. Brief for Respondents 15-36. I would
The problems posed by the Court of Appeals' failure to explain its decision are evident in the Court's discussion of supervisory powers. The Court suggests, for example, that "in this context, the integrity of the process carries less weight, for it is the essence of the harmless-error doctrine that a judgment may stand only when there is no `reasonable possibility that the [practice] complained of might have contributed to the conviction.' " Ante, at 506 (citation omitted).
The Court also states that "deterrence is an inappropriate basis for reversal where, as here, the prosecutor's remark is at most an attenuated violation of Griffin and where means more narrowly tailored to deter objectionable prosecutorial conduct are available." Ibid. (footnotes omitted). Without disputing that a court of appeals generally should use means more narrowly tailored than reversal to deter improper prosecutorial conduct, there may be reasons why a court of appeals would reject the use of such means. Prior experience, for example, might have demonstrated the futility of relying on Department of Justice disciplinary proceedings.
The Court also states that "reversals of convictions under the court's supervisory power must be approached `with some caution' . . . and with a view toward balancing the interests involved . . . ." Ante, at 506-507. The Court goes on to state that the "Court of Appeals failed in this case to give appropriate — if, indeed, any — weight to these relevant interests." Ante, at 507. According to the Court, the Court of Appeals "did not consider the trauma the victims of these particularly heinous crimes would experience in a new trial, forcing them to relive harrowing experiences now long past, or the practical problems of retrying these sensitive issues
The only thing of which we can be sure is that the Court of Appeals refused, without an adequate explanation, to apply the harmless-error doctrine. This error calls for vacating the judgment and remanding the case. See supra, at 520, and n. 2. It does not call for an extended discussion of the scope of an appellate court's supervisory powers, an examination of the relationship between those powers and the harmless-error rule, a rejection of the exercise of those powers in the absence of an explanation to inform the analysis, or an application of the harmless-error rule by this Court in the first instance.
Although the Court's opinion is not clear, it is possible that it could be read to establish a per se rule against use of the supervisory powers to reverse a conviction based on a harmless error. Compare ante, at 506, 509-510, n. 7, with ante, at 506-507, 509. See also ante, at 505 ("We hold that the harmless-error rule of Chapman . . . may not be avoided by an assertion of supervisory power, simply to justify a reversal of these criminal convictions" (emphasis supplied)). If the Court is attempting to establish a per se rule against using supervisory powers to reverse a conviction based on harmless error, the absence of an explanation by the Court of Appeals is not as great an impediment to its decision. The fact remains, however, that the question the Court chooses
In Chapman the Court addressed the question of whether a violation of the rule of Griffin v. California, 380 U.S. 609 (1965), can be held to be harmless. 386 U. S., at 20. In considering this question, the Court rejected a rule of automatic reversal. Id., at 22. We noted the prevalence of harmless-error statutes or rules and stated that these rules "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." Ibid. In this light, we concluded 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." Ibid.
In Connecticut v. Johnson, 460 U.S. 73 (1983), the plurality stated that "Chapman continued a trend away from the practice of appellate courts in this country and in England of `revers[ing] judgments for the most trivial errors.' " Id., at 82 (citation omitted). As the Court notes, the goal of the harmless-error rule is " `to conserve judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error.' " Ante, at 509 (citation omitted). Chapman also stands for the proposition that a criminal defendant is not entitled to reversal of his conviction if the constitutional violation at issue is subject to harmless-error analysis and, after the issue has been raised and the Government has carried its burden, the
The harmless-error rule announced in Chapman is based on important jurisprudential and social policies and generally should be applied to constitutional errors which it covers. This is not to suggest, however, that application of the harmless-error rule is a constitutional imperative; nothing in Chapman suggests that the rule always must be applied, or that convictions tainted only by harmless error never may be reversed. Chapman stands only for the proposition that certain constitutional guarantees do not themselves require reversal for harmless violations. If there is other authority, aside from the constitutional provisions violated in the case, that supports either a decision not to apply the rule or to reverse a conviction even though the error at issue is harmless, Chapman does not stand as a bar to such action. Federal statutes and state law are two such sources of authority.
In McNabb v. United States, 318 U.S. 332 (1943), the Court stated that "[j]udicial supervision of the administration of criminal justice in the federal courts implies the duty of
I have no occasion now to define the precise contours of supervisory powers or to explore the circumstances in which
"In trial of all persons charged with the commission of offenses against the United States . . . the person charged shall, at his own request, be a competent witness. His failure to make such request shall not create any presumption against him."
This statute is the current codification of the Act of March 16, 1878, 20 State. 30, ch. 37, which was construed in Wilson v. United States, 149 U.S. 60 (1893). There the Court held that a new trial must be granted when the jury hears "comment, especially hostile comment, upon [the] failure [to testify]," id., at 65, in order to effectuate the congressional policy underlying the statute. See also Bruno v. United States, 308 U.S. 287 (1939).
The original statute was, however, repealed in 1948 and replaced a year later by a version in which the term "technical" was deleted, 63 Stat. 105. Although it appears that repeal and reenactment resulted from confusion over whether Federal Rule of Criminal Procedure 52(a) and Federal Rule of Civil Procedure 61 made § 391 redundant, 11 C. Wright & A. Miller, Federal Practice and Procedure § 2881 (1973), the result is that § 2111 by its terms may be coextensive with Chapman, see R. Traynor, The Riddle of Harmless Error 41-43 (1970).
We need not reach this issue, or the further question whether there is a conflict between § 3481, see n. 1, supra, and § 2111, which appears to require affirmance of a conviction if the error is harmless.
" `These things he has not seen fit to take the stand and deny or explain.
" `And in the whole world, if anybody would know, this defendant would know.
" `Essie Mae is dead, she can't tell you her side of the story. The defendant won't.' " 380 U. S., at 611.
As the Court points out, ante, at 504-505, the Court of Appeals discussed the continuing problem of improper prosecutorial comment in United States v. Rodriguez, 627 F.2d 110 (CA7 1980), which is cited in the court's opinion in this case. See 660 F. 2d, at 303. The Court states that the "Rodriguez court discussed, without explicitly adopting, the rule announced by the First Circuit in United States v. Flannery, 451 F.2d 880, 882 (1971), that any prosecutorial reference to a defendant's failure to testify is per se grounds for reversal unless the judge immediately instructs the jury that the defendant had a constitutional right not to testify and advises the jury that the prosecutor's conduct was improper." Ante, at 504-505. In fact, the Court of Appeals expressly declined "to adopt so strict a rule." 627 F. 2d, at 113.