Brecht v. Abrahamson
Decided on Apr. 14, 1993; 507 US 619


A. Issues Discussed:  Criminal Justice (procedure), habeas relief, 4th Amendment, 5th Amendment, 14th Amendment

B. Legal Question Presented: 

Must habeas relief be granted because of an unconstitutional "trial error"?  What standard applies on collateral review of constitutional error?

A. Background:

In a Wisconsin state court, Todd Brecht admitted shooting his brother-in-law, claiming it was accidental. Attempting to discredit Brecht’s testimony, the State referenced that Brecht failed to tell anyone that the shooting was accidental before he was given his Miranda warnings. The State also referenced to his post-Miranda warning silence. The jury returned a guilty verdict and Brecht was sentenced to life in prison.

Brecht filed an appeal with the Wisconsin State Court of Appeals, claiming the prosecution's reference to his post-Miranda silence violated his right to due process according to Doyle v. Ohio. The court reversed his conviction, due to sufficient "prejudicial" error, but the Wisconsin State Supreme Court reinstated the state court's original decision.

Brecht filed a writ of habeas corpus in federal court. The District Court upheld his claim, and found that the violation was not a harmless error under Chapman v. California, overturning his conviction again, but only to be reinstated by the United States Court of Appeals for the Seventh Circuit. Rather than adhering to the Chapman standard, the United States Court of Appeals for the Seventh Circuit applied the Kotteakos v. United States test, which requires that the Doyle error have a "substantial and injurious effect" on the jury's verdict. Brecht's Doyle claim did not meet this standard, and the circuit court denied his writ of habeas corpus.

The United States Supeme Court granted certiorari to resolve the dispute between the lower courts.

B. Counsel of Record:
Opposing Side
Allen E. Shoenberger, by appointment of the Court, argued the cause and filed briefs for petitioner. Sally L. Wellman, Assistant Attorney General of Wisconsin, argued the cause for respondent. With her on the brief was James E. Doyle, Attorney General.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
American Civil Liberties Union, et al., filed an amicus brief by Steven R. Shapiro, John A. Powell, Leon Friedman, and Larry W Yackle, urging reversal. Attorney General Barr argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Roberts, Ronald J. Mann, and Vicki S. Marani.

Briefs urging affirmance were filed for the state of California, et al., by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Dane R. Gillette, Deputy Attorney General, and Mark L. Krotoski, Special Assistant Attorney General; and James H. Evans, Attorney General of Alabama; Charles E. Cole, Attorney General of Alaska; Winston Bryant, Attorney General of Arkansas; Gale A. Norton, Attorney General of Colorado; Richard N. Palmer, Chief State's Attorney of Connecticut; Larry EchoHawk, Attorney General of Idaho; Linley E. Pearson, Attorney General of Indiana; Robert T. Stephan, Attorney General of Kansas; Chris Gorman, Attorney General of Kentucky; Richard P. Ieyoub, Attorney General of Louisiana; Frank J. Kelley, Attorney General of Michigan; Michael C. Moore, Attorney General of Mississippi; William L. Webster, Attorney General of Missouri; Marc Racicot, Attorney General of Montana; Don Stenberg, Attorney General of Nebraska; Frankie Sue Del Papa, Attorney General of Nevada; Robert J. Del Tufo, Attorney General of New Jersey; Lee Fisher, Attorney General of Ohio; Ernest D. Preate, Jr., Attorney General of Pennsylvania; Travis Medlock, Attorney General of South Carolina; Mark Barnett, Attorney General of South Dakota; Dan Morales, Attorney General of Texas; Paul Van Dam, Attorney General of Utah; Jeffrey L. Amestoy, Attorney General of Vermont; Kenneth O. Eikenberry, Attorney General of Washington; Mario J. Palumbo, Attorney General of West Virginia; and Joseph B. Meyer, Attorney General of Wyoming.

An additional brief urging affirmance was filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.


"The Kotteakos harmless error standard, rather than the Chapman standard, applies in determining whether habeas relief must be granted because of unconstitutional 'trial error' such as the Doyle error… occurs during the presentation of the case to the jury..., it may be quantitatively assessed in the context of other evidence to determine its effect on the trial...

The federal habeas statute is silent as to the applicable standard, and while the federal harmless error statute appears to echo the Kotteakos standard, it has been limited in its application to claims of nonconstitutional error in federal criminal cases...

[C]ounsels in favor of application of the less onerous Kotteakos standard on collateral review, under which claimants are entitled to relief for trial error only if they can establish that 'actual prejudice' resulted...

It is clear that the Doyle error at Brecht's trial did not 'substantially influence' the jury's verdict within the meaning of Kotteakos, since the record, considered as a whole, demonstrates that the State's references to Brecht's post-Miranda silence were infrequent and were... cumulative of the extensive and permissible references to his pre-Miranda silence; that the evidence of his guilt was... weighty; and that circumstantial evidence also pointed to his guilt."

Held: The judgment was affirmed. Petitioner was not entitled to relief.

Justice Vote: 4 Pro vs. 5 Con

  • Rehnquist, W.  Con (Wrote majority opinion)
  • Stevens, J.  Con (Wrote concurring opinion)
  • Scalia, A.  Con (Joined majority opinion)
  • Kennedy, A.  Con (Joined majority opinion)
  • Thomas, C.  Con (Joined majority opinion)
  • White, B.  Pro (Wrote dissenting opinion)
  • Blackmun, H.  Pro (Joined White's dissenting opinion)
  • Souter, D.  Pro (Joined White's dissenting opinion in part)
  • O’ Connor, S.  Pro (Wrote dissenting opinion)

The ACLU filed as amicus urging reversal; the United States Supreme Court affirmed the ruling in a 5-4 vote, giving the ACLU an apparent loss.