436
Opinion of the Court
whether the error " ' "had substantial and injurious effect or influence in determining the jury's verdict." ' " Id., at 145 (quoting Brecht v. Abrahamson, 507 U. S. 619, 627 (1993) (quoting, and adopting, standard set forth in Kotteakos v. United States, 328 U. S. 750, 776 (1946))). But, rather than ask directly whether the record's facts satisfied this standard, the court seemed to refer to a burden of proof. Its opinion says that the habeas petitioner must bear the "burden of establishing" whether the error was prejudicial. 3 F. 3d, at 145. As a practical matter, this statement apparently means that, if a judge is in grave doubt about the effect on the jury of this kind of error, the petitioner must lose. Thus, O'Neal might have lost in the Court of Appeals, not because the judges concluded that the error was harmless, but because the record of the trial left them in grave doubt about the effect of the error.
This Court granted certiorari to decide what the law requires in such circumstances. We repeat our conclusion: When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had "substantial and injurious effect or influence in determining the jury's verdict," that error is not harmless. And, the petitioner must win.
II
As an initial matter, we note that we deliberately phrase the issue in this case in terms of a judge's grave doubt, instead of in terms of "burden of proof." The case before us does not involve a judge who shifts a "burden" to help control the presentation of evidence at a trial, but rather involves a judge who applies a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect. In such a case, we think it conceptually clearer for the judge to ask directly, "Do I, the judge, think that the error substantially influenced the jury's decision?" than for the judge to try to put the same question in terms
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