Document Type


Publication Date

Fall 1993


Harmless error rule, Brecht-Kotteakos rule, Chapman rule, Brecht v. Abrahamson, Chapman v. California, Kotteakos v. United States, Richmond v. Lewis, Richmond principle, Capital punishment


Criminal Law | Criminal Procedure


The law of habeas corpus has changed again. This time it was the law of harmless error. Before Brecht v. Abrahamson, the courts applied the same harmless error rule on direct appeal and in federal habeas corpus. Under that rule, embraced for constitutional errors in Chapman v. California, a conviction tainted by a constitutional error susceptible to harmless error analysis could be upheld only if the state demonstrated that the error was harmless beyond a reasonable doubt. After Brecht, the venerable Chapman rule still applies to constitutional errors identified and reviewed on direct appeal, but an ostensibly "less onerous" standard applies to constitutional errors identified and reviewed on federal habeas corpus. Under this standard, derived from Kotteakos v. United States, and once used only for nonconstitutional errors, a conviction tainted by constitutional error “requires reversal only if it 'had substantial and injurious effect or influence in determining the jury's verdict.’”

The Court was sharply divided in Brecht. The opinion of the Court was delivered by Chief Justice Rehnquist and joined by Justices Stevens, Scalia, Kennedy and Thomas. Justice Stevens, who provided the critical fifth vote, wrote a separate concurring opinion "to emphasize that the [Brecht] standard is appropriately demanding." Justice Stevens' separate concurring opinion deserves careful attention because it diverges from that of the Chief Justice in several ways, making Justice Stevens' version of the Brecht-Kotteakos test much more favorable to habeas petitioners than that advanced by the Chief Justice.

The following Article provides a concise overview and analysis of Brecht, focusing especially on the opinions of the Chief Justice and Justice Stevens. It explores the structure of the Brecht-Kotteakos rule, both as articulated in the Brecht opinion and as interpreted thus far by the lower federal courts. Its principal conclusion is that on careful analysis the Brecht-Kotteakos rule and the Chapman rule, though doubtlessly different, turn out not to be that different. Finally, this Article examines various exceptions to the Brecht-Kotteakos rule, as well as the limited authority of the federal habeas courts to apply harmless error analysis to errors infecting the penalty phase of a capital trial.

Publication Citation

Published in: William and Mary Law Review, vol. 35, no. 1 (Fall 1993).