O'Neal v. McAninch, 513 U.S. 432, 8 (1995)

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Cite as: 513 U. S. 432 (1995)

Opinion of the Court

measure of harmlessness. Both of those cases had resolved the issue now before us the same way, placing the risk of doubt on the State. Moreover, the sentence from Brecht quoted above appears in a paragraph that adopts the very Kotteakos standard that we now apply. That paragraph does not explain why the Court would make an exception to the "grave doubt" portion of the Kotteakos standard. Furthermore, the Brecht opinion, in this respect, did not speak for a Court majority. Four Members of the Court, supporting application of Chapman's standard, dissented. And Justice Stevens, while a Member of the majority, stated explicitly that the Kotteakos standard applied in its entirety. 507 U. S., at 640 (concurring opinion) (agreeing, in part, because that standard "places the burden on prosecutors to explain why those errors were harmless").

We further acknowledge that this Court, in Palmer v. Hoffman, 318 U. S. 109 (1943), said:

"He who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted." Id., at 116.

But this pre-Kotteakos language, in context, referred to what the preceding sentence in Palmer described as "[m]ere 'technical errors.' " 318 U. S., at 116. Kotteakos itself makes clear that "technical errors" may be different. It quotes an excerpt from the House Report accompanying the harmless-error statute (then 28 U. S. C. § 391) that says the statute casts

" 'upon the party seeking a new trial the burden of showing that any technical errors that he may complain of have affected his substantial rights.' " Kotteakos, 328 U. S., at 760 (quoting H. R. Rep. No. 913, 65th Cong., 3d Sess., 1 (1919)).

The Report, however, (as Kotteakos immediately points out) goes on to say that if the error is not "technical," if, instead,

439

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