Page:United States Reports, Volume 542.djvu/120

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Cite as: 542 U.S. 74 (2004)

81

Opinion of the Court

B

It is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake's effect on the proceeding. See Arizona v. Fulminante, 499 U.S. 279, 309–310 (1991) (giving examples). Dominguez does not argue that either Rule 11 error generally or the Rule 11 error here is structural in this sense.^[1]

Otherwise, relief for error is tied in some way to prejudicial effect, and the standard phrased as "error that affects substantial rights," used in Rule 52, has previously been taken to mean error with a prejudicial effect on the outcome of a judicial proceeding. See Kotteakos v. United States, 328 U.S. 750 (1946). To affect "substantial rights," see 28 U.S.C. §2111, an error must have "substantial and injurious effect or inﬂuence in determining the . . . verdict." Kotteakos, supra, at 776.^[2] In cases where the burden of demonstrating prejudice (or materiality) is on the defendant seeking relief, we have invoked a standard with similarities to the Kotteakos formulation in requiring the showing of

↑ The argument, if made, would not prevail. The omission of a single Rule 11 warning without more is not colorably structural. Cf. United States v. Timmreck, 441 U.S. 780, 783–784 (1979) (holding that Rule 11 error without more is not cognizable on collateral review).
↑ When the Government has the burden of addressing prejudice, as in excusing preserved error as harmless on direct review of the criminal conviction, it is not enough to negate an effect on the outcome of the case. See Chapman v. California, 386 U.S. 18, 24 (1967) ("[T]he court must be able to declare a belief that [constitutional error] was harmless beyond a reasonable doubt"). When the Government has the burden of showing that constitutional trial error is harmless because it comes up on collateral review, the heightened interest in ﬁnality generally calls for the Government to meet the more lenient Kotteakos standard. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). If the burden is on a defendant to show prejudice in the ﬁrst instance, of course, it would be easier to show a reasonable doubt that constitutional error affected a trial than to show a likely effect on the outcome or verdict.

[1] The argument, if made, would not prevail. The omission of a single Rule 11 warning without more is not colorably structural. Cf. United States v. Timmreck, 441 U.S. 780, 783–784 (1979) (holding that Rule 11 error without more is not cognizable on collateral review).

[2] When the Government has the burden of addressing prejudice, as in excusing preserved error as harmless on direct review of the criminal conviction, it is not enough to negate an effect on the outcome of the case. See Chapman v. California, 386 U.S. 18, 24 (1967) ("[T]he court must be able to declare a belief that [constitutional error] was harmless beyond a reasonable doubt"). When the Government has the burden of showing that constitutional trial error is harmless because it comes up on collateral review, the heightened interest in ﬁnality generally calls for the Government to meet the more lenient Kotteakos standard. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). If the burden is on a defendant to show prejudice in the ﬁrst instance, of course, it would be easier to show a reasonable doubt that constitutional error affected a trial than to show a likely effect on the outcome or verdict.

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