John Marshall Harlan II

“ The key to the Court's opinion can, I think, be found in its statement that it cannot 'leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights,' and that 'in the absence of appropriate congressional action 'the Court must fashion protective rules. The harmless-error rule now established flows from what is seemingly regarded as a power inherent in the Court's constitutional responsibilities rather than from the Constitution itself. ”

“ Holding, as is done today, that a special harmless-error rule is a necessary remedy for a particular kind of error revives the unfortunate idea that appellate courts must act on particular errors rather than decide on reversal by an evaluation of the entire proceeding to determine whether the cause as a whole has been determined according to properly applicable law. In this case, California has recognized the impropriety of the trial comment here involved, and has given clear direction to state trial courts for the future. ”

“ For one who believes that among the constitutional values which contribute to the preservation of our free society none ranks higher than the principles of federalism, and that this Court's responsibility for keeping such principles intact is no less than its responsibility for maintaining particular constitutional rights, the doctrine announced today is a most disturbing one. ”

“ The California harmless-error rule, is incorporated in that State's constitution. It was first adopted by a vote of the people in 1911 and readopted as part of the revised constitution in 1966. While its language allows reversal only where there has been a 'miscarriage of justice,' a long course of judicial decisions has shaped the rule in a manner which cannot be ignored. California courts will not allow a conviction based upon an improperly obtained confession to stand. ”

“ The Court today holds that the harmlessness of a trial error in a state criminal prosecution, such error resulting from the allowance of prosecutorial comment barred by the Fourteenth Amendment, must be determined under a 'necessary rule' of federal law. The Court imposes a revised version of the standard utilized in Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, on state appellate courts, not because the Constitution requires that particular standard, but because the Court prefers it. ”

“ It cuts sharply into the finality of state criminal processes; it bids fair to place an unnecessary substantial burden of work on the federal courts; and it opens the door to further excursions by the federal judiciary into state judicial domains. ”