- 235 -
360 U.S. 264 (1959).103 In criminal cases, the Government
generally is obliged to show beyond a reasonable doubt that the
alleged error did not affect the verdict. See Arizona v.
Fulminante, supra at 295-296; Chapman v. California, 386 U.S. at
24.
Consistent with the approach of the cases on harmless error
in both the civil and criminal contexts, our inquiry is not
focused on the merits of the matter or the correctness of the
result in Dixon II, as such, but on what Justice Roger Traynor,
in his seminal essay, "The Riddle of Harmless Error" (1970),
called the "effect on the judgment" test of harmless error. Id.
at 22.104 We therefore will assess the effects of the Sims-McWade
misconduct in the cases at hand in the light of evidence
presented at the trial of the test cases and the evidentiary
hearing in order to determine whether the Government misconduct
was material to the outcome of the trial of the test cases.
Arizona v. Fulminante, supra at 307-308; United States v. Bagley,
supra at 679-680 n.9.
103 Although these criminal cases concern the prosecutor's
use of false testimony, as well as the prosecutor's suppression
of exculpatory and impeachment evidence, we believe they are
sufficiently analogous to the cases at hand where, at a minimum,
the Thompson and Cravens secret settlements and the Alexander
understanding could be viewed either as evidence that was
improperly admitted or impeachment evidence that was improperly
excluded.
104 For a more recent espousal of the same test in a
discussion limited to criminal cases see Edwards, “To Err Is
Human, But Not Always Harmless: When Should Legal Error Be
Tolerated?”, 70 N.Y.U.L. Rev. 1167 (1995).
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