United States v. Hasting , 103 S. Ct. 1974 ( 1983 )

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.

I

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 U. S. C. §2421, and conspiracy to commit the foregoing offenses in violation of 18 U. S. C. §371. They were tried before a jury. The defense relied on a theory of consent and — inconsistently—on the possibility that the victims’ identification of the respondents was mistaken. None of the respondents testified.

At the close of the case, and during the summation of the prosecutor, the following interchange took place:

“[PROSECUTOR]: . . . Let’s look at the evidence the defendants] put on here for you so that we can put that in perspective. I’m going to tell you what the defendants] did not do. Defendants on cross-examination and—

“[DEFENSE COUNSEL]: I’ll object to that, Your Honor. You’re going to instruct to the contrary on that and the defendants don’t have to put on any evidence.

“[PROSECUTOR]: That’s correct, Your Honor.

“THE COURT: That’s right, they don’t. They don’t have to.

“[PROSECUTOR]: But if they do put on a case, the Government can comment on it. The defendants at no time ever challenged any of the rapes, whether or not that occurred, any of the sodomies. They didn’t challenge the kidnapping, the fact that the girls were in East St. Louis and they were taken across to St. Louis. They never challenged the transportation of the victims from East St. Louis, Illinois to St. Louis, Missouri, and they never challenged the location or whereabouts of the defendants at all the relevant times. They want you to focus your attention on all of the events that were before all of the crucial events of that evening. They want to pull your focus away from the beginning of the incident in East St. Louis after they were bumped, and then the proceeding events. They want you to focus to the events prior to that. And you can use your common sense and still see what that tells you. ...” Tr. 873-874.

A motion for a mistrial was denied. The jury returned a verdict of guilty as to each respondent on all counts.

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).¹ In a terse opinion, the Court of Appeals reversed the convictions and remanded for retrial, 660 F. 2d 301 (CA7 1980), citing its decision in United States v. Buege, 578 F. 2d 187, 188, cert. denied, 439 U. S. 871 (1978), for the proposition that Griffin error occurs even without a direct statement on the failure of a defendant to take the stand when the “prosecutor refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony.” The Court of Appeals declined to rely on the harmless-error doctrine, however, stating that application of that doctrine “would impermissibly compromise the clear constitutional violation of the defendants’ Fifth Amendment rights.” 660 F. 2d, at 303. Respondents’ remaining claims were disposed of in an unpublished order that simply stated that the judgment of the District Court was reversed and the case remanded for a new trial.²

The Government petitioned for rehearing, claiming that the prosecutor’s remark was equivocal, nonprejudicial, and that the court failed to apply Chapman v. California, 386 U. S. 18 (1967), a case that the Court of Appeals had, in fact, failed to cite.³ The petition for rehearing was denied. We granted certiorari, 456 U. S. 971 (1982). We reverse.

II

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 to cure 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 pros-ecutorial 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. Obviously the Court of Appeals is more familiar than we are with what appellate records show concerning prosecutorial indifference to the court’s admonitions; the question we address is whether reversal of these convictions was an appropriate response. In view of this history of tension between what the Court of Appeals perceives as the requirements of Griffin and § 3481 and that court’s view of the prosecutors’ conduct, we proceed on the assumption that, without so stating, the court, was exercising its supervisory powers to discipline the prosecutors of its jurisdiction. The question presented is whether, on this record, in a purported exercise of supervisory powers, a reviewing court may ignore the harmless-error analysis of Chapman. We hold that the harmless-error rule of Chapman, which we discuss in Part II-B, infra, may not be avoided by an assertion of supervisory power, simply to justify a reversal of these criminal convictions.

A

Supervisory Power

“[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).

The goals that are implicated by supervisory powers are not, however, significant in the context of this case if, as the Court of Appeals plainly implied, the errors alleged are harmless. Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error. Further, 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.” Fahy v. Connecticut, 375 U. S. 85, 86-87 (1963). Finally, deterrence is an inappropriate basis for reversal where, as here, the prosecutor’s remark is at most an attenuated violation of Griffin⁴ and where means more narrowly tailored to deter objectionable prosecutorial conduct are available.⁵

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 caution,” Payner, 447 U. S., at 734, and with a view toward balancing the interests involved, id., at 735-736, and n. 8; Elkins, supra, at 216; United States v. Caceres, 440 U. S. 741, 755 (1979); cf. Nardone v. United States, 308 U. S. 338, 340 (1939). As we shall see below, the Court of Appeals failed in this case to give appropriate — if, indeed, any— weight to these relevant interests. It 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 more than four years after the events. See Morris v. Slappy, ante, at 14-15. The conclusion is inescapable that the Court of Appeals focused exclusively on its concern that the prosecutors within its jurisdiction were indifferent to the frequent admonitions of the court. The court appears to have decided to deter future similar comments by the drastic step of reversal of these convictions. But the interests preserved by the doctrine of harmless error cannot be so lightly and casually ignored in order to chastise what the court viewed as prosecutorial overreaching.

B

Harmless Error

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 provision permitting prosecutorial comment on the failure of the accused to testify violated the Fifth Amendment.

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:

“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.” 386 U. S., at 22 (emphasis added).

In holding that the harmless-error rule governs even constitutional violations under some circumstances,⁶ the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. Brown v. United States, 411 U. S. 223, 231-232 (1973), citing Bruton v. United States, 391 U. S. 123, 135 (1968); cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). Chapman reflected the concern, later noted by Chief Justice Roger Traynor of the Supreme Court of California, that when courts fashion rules whose violations mandate automatic reversals, they “retrea[t] from their responsibility, becoming instead ‘impregnable citadels of technicality.’” R. Traynor, The Riddle of Harmless Error 14 (1970) (quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A. B. A. J. 217, 222 (1925)).

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.⁷

III

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.⁸ See Harrington, supra, where the Court granted certiorari to consider the issue whether a Bruton error was harmless and to that end undertook its “own reading of the record,” 395 U. S., at 254. See also Chapman, 386 U. S., at 24-26; Milton v. Wainwright, supra, at 377; Parker v. Randolph, 442 U. S. 62, 80-81 (1979) (opinion of Blackmun, J.). Cf. Brown, supra, at 231. In making this assessment, we are aided by the Court of Appeals’ own explicit statement that

“[djespite the magnitude of the crimes committed and the clear evidence of guilt, an application of the doctrine of harmless error would impermissibly compromise the clear constitutional violation of the defendants’ Fifth Amendment rights.” 660 F. 2d, at 303. (Emphasis added.)

The question a reviewing court must ask is this: absent the prosecutor’s allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? Harrington, supra, at 254. A reviewing court must begin with the reality that the jurors sat in the same room day after day with the defendants and their lawyers; much testimony had been heard from the three women who described in detail the repeated wanton acts of the defendants during three hours in two States, thus negating any doubt as to identification. .Immediately on their release the victims described the defendants to the police and promptly identified them in lineups. Neutral witnesses corroborated critical aspects of the victims’ testimony. Randy Newcomb, a prosecution witness, testified that he witnessed the rape of one of the women shortly after the car in which he was riding was stopped; the garage owner where the second episode occurred observed two women with four men, one of whom answered to respondent Anderson’s description. The automobile, which was central to the case, was a singular color and was registered to respondent Williams. Property of two of the victims was found in respondent Stewart’s possession hours after the crimes; Williams’ fingerprints were found on the car in which the victims had been riding. In short, a more compelling case of guilt is difficult to imagine.

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 that the women entered respondents’ car willingly — a point hardly consistent with the idea that the respondents did not commit the crimes charged. That these defense efforts presented patently and totally inconsistent theories could hardly have escaped the attention of the jurors.

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).

1 Respondents also argued that the prosecution’s comments violate 18 U. S. C. §3481, which is discussed in Griffin v. California, 380 U. S., at 612. Section 3481 provides:

“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 Stat. 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).

2 The court’s opinion and order failed to describe or decide respondents’ remaining contentions. Nor were these claims presented in the parties’ briefs to this Court.

3 Arguably, the Court of Appeals also ignored 28 U. S. C. § 2111, which provides that “[o]n the hearing of any appeal . . . , 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.”

4 Justice Stevens may well be correct that the prosecutor’s argument was permissible comment. The question on which review was granted assumed that there was error and the question to be resolved was whether harmless-error analysis should have applied. Pet. for Cert. (I).

5 Here, for example, the court could have dealt with the offending argument by directing the District Court to order the prosecutor to show cause why he should not be disciplined, see, e. g., Southern District of Illinois Rule 33, or by asking the Department of Justice to initiate a disciplinary proceeding against him, see, e. g., 28 CFR § 0.39 et seq. (1982). The Government informs us that during the year 1980, the Department of Justice’s Office of Professional Responsibility investigated 28 complaints of unethical conduct and that one Assistant United States Attorney resigned in the face of an investigation that he made improper arguments to a grand jury. Brief for United States 21, n. 16. The Court also could have publicly chastised the prosecutor by identifying him in its opinion. See also United States v. Modica, 663 F. 2d 1173, 1183-1186 (CA2 1981).

6 The Court acknowledged that certain errors may involve “rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 U. S., at 23, citing Payne v. Arkansas, 356 U. S. 560 (1958) (coerced confession); Gideon v. Wainwright, 372 U. S. 335 (1963) (right to counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (impartial judge).

7 Since we hold that Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless, we do not reach the question whether 28 U. S. C. § 2111, see n. 3, supra, requires the same result. Its predecessor, 28 U. S. C. § 391 (1946 ed.), enacted in 1919, 40 Stat. 1181, provided that judgment was to be affirmed “without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” Under its plain meaning, this statute would not have reached a constitutional violation, see Bruno v. United States, 308 U. S., at 294; Kotteakos v. United States, 328 U. S. 750, 764-765 (1946).

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.

8 Since this Court has before it the same record the Court of Appeals reviewed, we are in precisely the position of that court in addressing the issue of harmless error.