U.S. Supreme Court Delaware v. Van Arsdall, 475
U.S. 673 (1986) Delaware v. Van
Arsdall No. 84-1279 Argued January 22,
1986 Decided April 7, 1986 475
U.S. 673 CERTIORARI TO THE SUPREME COURT OF
DELAWARE Syllabus During respondent's murder trial, the Delaware trial court
refused to allow defense counsel to cross-examine a prosecution
witness about an agreement that he had made to speak with the
prosecutor about the murder in question in exchange for the
dismissal of an unrelated criminal charge against him. Respondent
was convicted. The Delaware Supreme Court reversed on the ground
that the trial court, by improperly restricting defense counsel's
cross-examination designed to show bias on the prosecution witness'
part, violated respondent's rights under the Confrontation Clause
of the Sixth Amendment, and refused to consider whether such ruling
was harmless beyond a reasonable doubt. Held: While the trial court's denial of respondent's
opportunity to impeach the prosecution witness for bias violated
respondent's rights under the Confrontation Clause, such ruling is
subject to harmless error analysis under Chapman v.
California, 386 U. S. 18 . The
correct inquiry is whether, assuming that the damaging potential of
the cross-examination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable
doubt. Whether such an error is harmless in a particular case
depends upon a number of factors, including the importance of the
witness' testimony, whether the testimony was cumulative, the
presence or absence of corroborating or contradictory testimony on
material points, the extent of cross-examination otherwise
permitted, and the overall strength of the prosecution's case. Pp. 475 U. S.
681 -684. 486
A.2d 1 , vacated and remanded.

															REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 475 U. S. 684 .
MARSHALL, J., post, p. 475 U. S. 686 ,
and STEVENS, J., post, p. 475 U. S. 689 ,
filed dissenting opinions. Page 475 U. S. 674 JUSTICE REHNQUIST delivered the opinion of the Court.

															Respondent Robert Van Arsdall was convicted of murder in a
Delaware trial court. The Supreme Court of Delaware reversed his
conviction on the ground that the trial court, by improperly
restricting defense counsel's cross-examination designed to show
bias on the part of a prosecution witness, had violated
respondent's confrontation rights under the Sixth and Fourteenth
Amendments to the United States Constitution, and that such
violation required automatic reversal. 486
A.2d 1 (1984). While we agree that the trial court's ruling was
contrary to the mandate of the Confrontation Clause of the Sixth
Amendment, we conclude that the Supreme Court of Delaware was wrong
when it declined to consider whether that ruling was harmless in
the context of the trial as a whole.

															Shortly after midnight on January 1, 1982, Doris Epps was
stabbed to death in an apartment in Smyrna, Delaware, after an
all-day New Year's Eve party. Respondent and Daniel Pregent, who by
respondent's testimony were the only two people in the apartment
with Epps at the time she was killed, were arrested at the scene of
the crime and charged with Epps' murder. At separate trials,
respondent was convicted and Pregent was acquitted.

															The State's case against respondent was based on circumstantial
evidence, and proceeded on the theory that respondent had either
killed Epps or assisted Pregent in doing so. Several of the
partygoers testified about the party and the scene after the
killing. The party, which lasted from late in the morning of
December 31, 1981, until shortly before midnight, was held in the
adjacent apartments of Pregent and Page 475 U. S. 675 Robert Fleetwood. Respondent, who was one of at least a dozen
guests who attended the party during the course of the day, had
stopped in for two brief periods in the late afternoon and early
evening, and then returned for a third time at about 11:30 p.m. By
that time the party was over, Pregent had quarreled with a female
guest, kicked a hole in a hallway wall, and had to be restrained.
An intoxicated Epps had been placed on a sofa bed in Pregent's
apartment after passing out. And shortly before 11 p.m., a second
altercation of some kind occurred, prompting Fleetwood to close the
party in his apartment to everyone except his two friends, Alice
Meinier and Mark Mood. When respondent returned to Pregent's
apartment at about 11:30, only Pregent and Epps were present.

															Robert Fleetwood was the 10th of 16 prosecution witnesses. In
addition to recounting uncontroverted facts about the party, he
testified that, sometime between 11 and 11:30 p.m., he walked
across the hall, looked into Pregent's living room from the
doorway, and saw respondent sitting on the edge of the sofa bed
next to Pregent's feet. Fleetwood, who did not have a complete view
of the bed, did not see Epps or anyone else in the apartment. Upon
returning to his own apartment, Fleetwood stayed awake long enough
to hear nearby bells ring in the New Year, at which point he passed
out. App. 82-85.

															Meinier, who with Mood had remained awake in Fleetwood's
apartment, testified that, at roughly 1 a.m., respondent knocked at
Fleetwood's door. Respondent's shirt and hands were spattered with
blood, and he was holding a long, blood-covered knife. According to
Meinier, respondent stated that "he had gotten in a fight" but that
he "got them back." Id. at 130. After turning the knife
over to Mood and washing his hands, respondent said "I think
there's something wrong across the hall." Id. at 132.
Meinier went to Pregent's apartment and discovered Epps' body lying
in a pool of blood on the kitchen floor. Mood then summoned the
police, who found respondent in Fleetwood's Page 475 U. S. 676 apartment and Pregent asleep on the blood-splattered sofa bed in
his living room.

															In addition to the testimony of the partygoers and the arresting
officers, the State introduced Pregent's postarrest statement,
respondent's two postarrest statements, and the testimony of a
forensic expert. Among other things, the expert testified about the
nature and source of the bloodstains on respondent's clothing.

															During Fleetwood's cross-examination, defense counsel sought to
impeach Fleetwood by questioning him about the dismissal of a
criminal charge against him -- being drunk on a highway -- after he
had agreed to speak with the prosecutor about Epps' murder. When
the prosecutor objected, the trial court allowed counsel to
question Fleetwood on the matter outside the presence of the jury.
Fleetwood acknowledged that the drunkenness charge had been dropped
in exchange for his promise to speak with the prosecutor about the
murder, but he denied that the agreement had affected his
testimony. [ Footnote 1 ] The
trial court barred any cross-examination about that agreement,
citing Delaware Rule of Evidence 403. [ Footnote 2 ] The court also refused to permit defense
counsel to cross-examine Fleetwood about his being questioned by
the police in connection with an unrelated homicide that had
occurred after Epps' murder. On voir dire conducted
outside the presence of the jury, Fleetwood denied that he had
been Page 475 U. S. 677 offered any favors, inducements, promises, or deals concerning
that homicide investigation in exchange for his testimony at
respondent's trial.

															Respondent was the only defense witness. Consistent with his
second statement to the police, he attributed Epps' murder to
Pregent. Consistent with Fleetwood's testimony, he stated that he
had returned to Pregent's apartment, after drinking with friends,
by about 11:30 p.m.

															Defense counsel admitted in their opening and closing arguments
to the jury that respondent was in Pregent's apartment when Epps
was killed. In closing argument, after attempting to discredit
Fleetwood's testimony (largely by emphasizing his intoxication),
counsel stressed that all that testimony proved was what respondent
"never denied," that "he was at Danny Pregent's apartment before
Doris Epps was murdered." App. 188-189. The jury found respondent
guilty of first-degree murder and possession of a deadly weapon
during the commission of a felony.

															On appeal, the Delaware Supreme Court reversed respondent's
conviction on the authority of the Confrontation Clause. Noting
that

															"the bias of a witness is subject to exploration at trial and is
'always relevant as discrediting the witness and affecting the
weight of his testimony,'"

															486 A.2d at 6 (quoting Davis v. Alaska, 415 U.
S. 308 , 415 U. S. 316 (1974)), the court found that the trial judge's ruling denied
respondent his constitutional right to effective cross-examination.
By barring any cross-examination of Fleetwood about the
dismissal of the public drunkenness charge, the ruling kept from
the jury facts concerning bias that were central to assessing
Fleetwood's reliability. The court rejected the State's argument
that, since "Fleetwood's basic testimony was cumulative in nature
and unimportant," the Confrontation Clause error was harmless
beyond a reasonable doubt. 486 A.2d at 7. The court held that "a
blanket prohibition against exploring potential bias through
cross-examination" Page 475 U. S. 678 is "a per se error," so that "the actual prejudicial
impact of such an error is not examined." Ibid. [ Footnote 3 ]

															We granted certiorari, 473 U.S. 923 (1985), and now vacate and
remand.

															The Confrontation Clause of the Sixth Amendment guarantees the
right of an accused in a criminal prosecution "to be confronted
with the witnesses against him." The right of confrontation, which
is secured for defendants in state as well as federal criminal
proceedings, Pointer v. Texas, 380 U.
S. 400 (1965), "means more than being allowed to
confront the witness physically." Davis v. Alaska, 415
U.S. at 415 U. S. 315 .
Indeed, " [t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of
cross-examination. '" Id. at 415 U. S.
315 -316 (quoting 5 J. Wigmore, Evidence § 1395, p. 123
(3d ed.1940)) (emphasis in original). Of particular relevance
here, "[w]e have recognized that the exposure of a witness' motivation
in testifying is Page 475 U. S. 679 a proper and important function of the constitutionally
protected right of cross-examination." Davis, supra, at 415 U. S.
316 -317 (citing Greene v. McElroy, 360 U.
S. 474 , 360 U. S. 496 (1959)). It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge from imposing
any limits on defense counsel's inquiry into the potential bias of
a prosecution witness. On the contrary, trial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the
issues, the witness' safety, or interrogation that is repetitive or
only marginally relevant. And as we observed earlier this Term,

															"the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish." Delaware v. Fensterer, 474 U. S.
15 , 474 U. S. 20 (1985) (per curiam) (emphasis in original).

															In this case, however, the trial court prohibited all inquiry
into the possibility that Fleetwood would be biased as a result of
the State's dismissal of his pending public drunkenness charge. By
thus cutting off all questioning about an event that the State
conceded had taken place and that a jury might reasonably have
found furnished the witness a motive for favoring the prosecution
in his testimony, the court's ruling violated respondent's rights
secured by the Confrontation Clause. [ Footnote 4 ]

															The State somewhat tentatively suggests that a defendant should
have to show "outcome-determinative" prejudice in order to state a
violation of the Confrontation Clause: unless the particular
limitation on cross-examination created a reasonable possibility
that the jury returned an inaccurate guilty Page 475 U. S. 680 verdict, that limitation would not violate the Confrontation
Clause. We disagree. While some constitutional claims, by their
nature, require a showing of prejudice with respect to the trial as
a whole, see, e.g., Strickland v. Washington, 466 U.
S. 668 (1984) (ineffective assistance of counsel), the
focus of the Confrontation Clause is on individual witnesses.
Accordingly, the focus of the prejudice inquiry in determining
whether the confrontation right has been violated must be on the
particular witness, not on the outcome of the entire trial. It
would be a contradiction in terms to conclude that a defendant
denied any opportunity to cross-examine the witnesses against him
nonetheless had been afforded his right to "confront[ation]"
because use of that right would not have affected the jury's
verdict. We think that a criminal defendant states a violation of
the Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and
thereby "to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability of
the witness." Davis v. Alaska, supra, at 415 U. S. 318 .
Respondent has met that burden here: a reasonable jury might have
received a significantly different impression of Fleetwood's
credibility had respondent's counsel been permitted to pursue his
proposed line of cross-examination.

															After concluding that the trial judge's ruling was
constitutional error, the Delaware Supreme Court rebuffed the
State's effort to show "beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained," Chapman v. California, 386 U. S. 18 , 386 U. S. 24 (1967). In so doing, it offered no explanation why the Chapman harmless error standard, which we have applied in
other Confrontation Clause cases, e.g., Harrington v.
California, 395 U. S. 250 (1969); Schneble v. Florida, 405 U.
S. 427 (1972), is inapplicable here. We find
respondent's efforts to defend the automatic reversal rule
unconvincing. Page 475 U. S. 681 As we have stressed on more than one occasion, the Constitution
entitles a criminal defendant to a fair trial, not a perfect one. E.g., United States v. Hasting, 461 U.
S. 499 , 461 U. S.
508 -509 (1983); Bruton v. United States, 391 U. S. 123 , 391 U. S. 135 (1968). In Chapman, this Court rejected the argument that
all federal constitutional errors, regardless of their nature or
the circumstances of the case, require reversal of a judgment of
conviction. The Court reasoned that, in the context of a particular
case, certain constitutional errors, no less than other errors, may
have been "harmless" in terms of their effect on the factfinding
process at trial. Since Chapman, we have repeatedly
reaffirmed the principle that an otherwise valid conviction should
not be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a
reasonable doubt. E.g., United States v. Hasting, supra, (improper comment on defendant's silence at trial); Moore v.
Illinois, 434 U. S. 220 , 434 U. S. 232 (1977) (admission of identification obtained in violation of right
to counsel); Harrington v. California, supra, (admission
of nontestifying codefendant's statement). The harmless error
doctrine recognizes the principle that the central purpose of a
criminal trial is to decide the factual question of the defendant's
guilt or innocence, United States v. Nobles, 422 U.
S. 225 , 422 U. S. 230 (1975), and promotes public respect for the criminal process by
focusing on the underlying fairness of the trial, rather than on
the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) ("Reversal for
error, regardless of its effect on the judgment, encourages
litigants to abuse the judicial process and bestirs the public to
ridicule it").

															At the same time, we have observed that some constitutional
errors -- such as denying a defendant the assistance of counsel at
trial, or compelling him to stand trial before a trier of fact with
a financial stake in the outcome -- are so fundamental and
pervasive that they require reversal without regard to the facts or
circumstances of the particular case. Page 475 U. S. 682 Chapman, supra, at 386 U. S. 23 , n.
8 (citing, inter alia, Gideon v. Wainwright, 372 U.
S. 335 (1963), and Tumey v. Ohio, 273 U.
S. 510 (1927)). The error at issue here is obviously
quite different, however, as this Court's post- Chapman decisions demonstrate. In Harrington v. California, for
example, we expressly rejected the claim that the admission into
evidence of a statement made by a nontestifying codefendant, in
violation of Bruton v. United States, supra, can never be
harmless. [ Footnote 5 ] Harrington, which we have expressly reaffirmed on more
than one occasion, see, e.g., Schneble v. Florida, supra; Brown
v. United States, 411 U. S. 223 (1973), demonstrates that the denial of the opportunity to
cross-examine an adverse witness does not fit within the limited
category of constitutional errors that are deemed prejudicial in
every case.

															Respondent seeks to blunt the force of Harrington in
essentially two ways. First, he suggests that this Court's decision
in Davis v. Alaska forecloses application of harmless
error analysis to the particular sort of Confrontation Clause
violation involved here, citing the following language near the end
of the Court's opinion:

															"[Davis] was thus denied the right of effective
cross-examination which 'would be constitutional error of the first
magnitude, and no amount of showing of want of prejudice would cure
it.' Brookhart v. Janis , 384 U. S.
1 , Page 475 U. S. 683 384 U. S. 3 . 415 U.S. at 415 U. S. 318 (quoting Smith v. Illinois, 390 U. S. 129 , 390 U. S.
131 (1968)). Read properly, however, Davis does
not support an automatic reversal rule, and the above-quoted
language merely reflects the view that, on the facts of that case,
the trial court's error had done 'serious damage' to the
petitioner's defense."

															Davis was charged with stealing a safe from a bar. The police
found the stolen safe abandoned near the home of Richard Green, who
testified at trial that he had seen Davis engaged in suspicious
activity near this site on the day of the crime. Defense counsel
was barred from eliciting on cross-examination that Green was on
juvenile probation for burglary both at the time of his pretrial
identification of Davis and at the time of trial. The defense
sought to suggest that Green may have slanted his account in the
State's favor either to shift suspicion away from himself or to
avoid revocation of probation for failing to "cooperate." 415 U.S.
at 415 U. S.
310 -311. This Court reversed Davis' conviction,
emphasizing that Green's testimony was "crucial," and that there
was a "real possibility" that pursuit of the excluded line of
impeachment evidence would have done "[s]erious damage to the
strength of the State's case." Id. at 415 U. S. 319 .
So despite the absence of a reference to Chapman, Davis plainly rests on the conclusion that, on the facts of that case,
the error might well have contributed to the guilty verdict. Davis should not be read as establishing, without
analysis, a categorical exception to the harmless error rule.

															Respondent's second argument in support of a per se reversal rule is that the Confrontation Clause error in this case,
which, like Davis, involved the exclusion of
evidence, is analytically distinct from that in Harrington v.
California, which involved the erroneous admission of
harmless testimony. Because it is impossible to know how wrongfully
excluded evidence would have affected the jury, the argument runs,
reversal is mandated. But Harrington cannot be so easily
dispatched. Respondent, like Harrington, was denied Page 475 U. S. 684 an opportunity to cast doubt on the testimony of an adverse
witness. [ Footnote 6 ] In both
cases, the prosecution was thus able to introduce evidence that was
not subject to constitutionally adequate cross-examination. And in
both cases, the reviewing court should be able to decide whether
the not-fully-impeached evidence might have affected the
reliability of the factfinding process at trial.

															Accordingly, we hold that the constitutionally improper denial
of a defendant's opportunity to impeach a witness for bias, like
other Confrontation Clause errors, is subject to Chapman harmless error analysis. The correct inquiry is whether, assuming
that the damaging potential of the cross-examination were fully
realized, a reviewing court might nonetheless say that the error
was harmless beyond a reasonable doubt. Whether such an error is
harmless in a particular case depends upon a host of factors, all
readily accessible to reviewing courts. These factors include the
importance of the witness' testimony in the prosecution's case,
whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution's case. Cf. Harrington, 395 U.S. at 395 U. S. 254 ; Schneble v. Florida, 405 U.S. at 450 U. S.
432 .

															We believe that the determination whether the Confrontation
Clause error in this case was harmless beyond a reasonable doubt is
best left to the Delaware Supreme Court in the first instance.
Accordingly, that court's judgment is vacated, and the case is
remanded for further proceedings not inconsistent with this
opinion. It is so ordered. [ Footnote 1 ]

															When asked about his understanding of why the charge was
dropped, respondent stated:

															"Well, I did understand that I did feel that you wanted to make
sure that I knew what I was talking about, and I do feel that you
wanted to make sure I had my story together before coming in here.
So that is why I did feel that it was dropped."

															App. 106.

															[ Footnote 2 ]

															Delaware Rule of Evidence 403, which is virtually identical to
Federal Rule of Evidence 403, provides:

															"Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues or misleading the jury, or by
considerations of undue delay, waste of time or needless
presentation of cumulative evidence."

															[ Footnote 3 ]

															Respondent asserts that this Court is without jurisdiction to
hear this case because the Delaware Supreme Court's automatic
reversal rule rests on an adequate and independent state ground. He
argues that the rule was adopted not on the basis of federal
constitutional law, but as a prophylactic device, announced under
that court's "superintending" authority, to "send an unequivocal
message" to state trial judges about the importance of permitting
liberal cross-examination. Brief for Respondent 41. We
disagree.

															"[W]e will not assume that a state court decision rests on
adequate and independent state grounds when the"

															"state court decision fairly appears to rest primarily on
federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not
clear from the face of the opinion." Caldwell v. Mississippi, 472 U.
S. 320 , 472 U. S. 327 (1985) (quoting Michigan v. Long, 463 U.
S. 1032 , 463 U. S.
1040 -1041 (1983)). The opinion of the Delaware Supreme
Court, which makes use of both federal and state cases in its
analysis, lacks the requisite "plain statement" that it rests on
state grounds. Michigan v. Long, supra, at 463 U. S.
1042 , 463 U. S.
1044 . Indeed, the opinion makes no reference to any
"superintending" authority, and nowhere suggests the existence of a
state prophylactic rule designed to insure protection for a federal
constitutional right. We read the decision below as resting on
federal law.

															[ Footnote 4 ]

															The Delaware Supreme Court did not decide whether the trial
court erred in preventing respondent from cross-examining Fleetwood
about the unrelated homicide investigation. 486
A.2d 1 , 7, n. 3 (1984). We likewise decline to consider that
question.

															[ Footnote 5 ] Bruton had held that the receipt at a joint trial of
the incriminating statement of a nontestifying codefendent deprived
Bruton of his right to cross-examine an adverse witness. In Harrington, the trial court admitted the pretrial
statements of two codefendants who did not testify. The statements
implicated Harrington by placing him at the scene of the robbery,
and their admission plainly violated Bruton. This Court
nevertheless affirmed Harrington's conviction, over his objection
that Bruton error could never be harmless. Noting that the
wrongfully admitted evidence was cumulative and that the untainted
proof of the defendant's guilt was overwhelming, the Court
concluded that the error was harmless beyond a reasonable doubt.
395 U.S. at 395 U. S.
254 .

															[ Footnote 6 ]

															Respondent does not contend that he was denied the opportunity
to elicit exculpatory evidence from Fleetwood.

															JUSTICE WHITE, concurring in the judgment.

															The Sixth Amendment confers on defendants in criminal cases the
right "to be confronted with the witnesses against" Page 475 U. S. 685 them. The Court has interpreted these words as meaning more than
being allowed to confront the witnesses physically, more than the
right to be tried by live testimony rather than affidavits. It
includes the opportunity for effective cross-examination of the
State's witnesses. I do not here dispute these interpretations of
the constitutional language; but they neither require nor advise
the Court to hold, as it does today, that the Amendment is violated
whenever a trial judge limits cross-examination of a particular
witness and the jury might have received a significantly different
impression of the witness' credibility had cross-examination not
been curtailed, even if the limitation and its consequences could
not possibly have had any effect on the outcome of the trial.

															It makes much more sense to hold that no violation of the
Confrontation Clause has occurred unless there is some likelihood
that the outcome of the trial was affected. I agree that the
Delaware Court erred, and that we should remand for consideration
of prejudice, but I would not now hold that a constitutional
violation occurred. If it is ultimately held that the outcome would
have been the same whether or not cross-examination had been
limited, no Sixth Amendment violation occurred in this case.

															I would thus treat this claim of a Sixth Amendment violation
just as the majority would treat limitations on cross-examination
that would fall within the trial judge's

															"wide latitude insofar as the Confrontation Clause is concerned
to impose reasonable limits on . . . cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that
is repetitive or only marginally relevant." Ante at 475 U. S. 679 .
These "reasonable" limitations are not violations at all, obviously
because they can have no impact on the fairness of the trial. Yet
the curtailment of cross-examination imposed in this case is said
to be unreasonable and an infraction of the Amendment even though
it may be held beyond reasonable doubt that it had no impact
whatsoever on the result the jury reached. Page 475 U. S. 686 No judge welcomes or can ignore being told that he committed a
constitutional violation, even if the conviction is saved by a
harmless error finding. Being advised by the Court that there is an
area of cross-examination curtailment that is not only harmless but
not a constitutional violation but, at the same time, an area of
curtailment that, even though harmless, is an infraction of our
fundamental charter, the judge will surely tend to permit the
examination rather than risk being guilty of misunderstanding the
constitutional requirements of a fair trial. I would not so
undermine the authority of the judge to restrict cross-examination
in a manner having no appreciable impact on the reliability of the
outcome, particularly since the language and purpose of the
specific provision at issue do not otherwise dictate.

															Even if it is ultimately held in this case that the error was
harmless, as the Court is quite willing to assume will be the case,
the judge has been declared derelict and commanded not again to
restrict cross-examination in this manner even though he is
convinced, and rightly so, that it has no significance whatsoever
in terms of the outcome of the trial. With all due respect, I
cannot join the Court's opinion.

															JUSTICE MARSHALL, dissenting.

															The Court today properly holds that a complete denial of
cross-examination designed to explore the bias of a prosecution
witness violates the Confrontation Clause, whether or not the
denial influenced the outcome of the trial and whether or not the
witness was important to the prosecution's case. Nevertheless, the
Court remands in order to permit the state court to apply harmless
error analysis to that violation. I must respectfully dissent from
the latter part of the Court's holding. I believe that the
importance of cross-examination to a criminal trial is so great
that a complete denial of otherwise proper cross-examination
concerning the potential bias of a prosecution witness should lead
to no less than a reversal of the conviction. Page 475 U. S. 687 In holding the Confrontation Clause applicable to the States,
this Court referred to the right of cross-examination as "an
essential and fundamental requirement for the kind of fair trial
which is this country's constitutional goal." Pointer v.
Texas, 380 U. S. 400 , 380 U. S. 405 (1965). If indeed the harmless error doctrine focuses on the
fairness and accuracy of a criminal trial, see ante at 475 U. S. 681 ,
it is odd that the majority so easily applies it to a type of error
that calls both fairness and accuracy into question to an almost
unique degree.

															The centrality of cross-examination to the factfinding process
makes it particularly unlikely that an appellate court can
determine that a denial of cross-examination had no effect on the
outcome of a trial.

															"[T]he court ordinarily cannot measure whether harm has ensued
to an appellant when he has been denied the opportunity to
cross-examine witnesses against him, given all the risks. Had
cross-examination been allowed, for example, it might have served
to impeach a witness, and thus to cast doubt on corroborating
testimony, or it might have elicited exculpatory evidence. Only on
rare occasions will an appellate court be able to find that the
testimony of the witness was so tangential, or so well
corroborated, or so clearly invulnerable to attack that the denial
of the right to cross-examination was harmless."

															R. Traynor, The Riddle of Harmless Error 68-69 (1970). The fact
that a particular witness' testimony was corroborated cannot render
harmless a denial of the right to expose his bias. Defense counsel
may have valid strategic reasons for challenging one witness'
testimony aggressively while treating a corroborating witness more
gently. Jurors evaluating the witnesses' demeanor may choose to
give great weight to the testimony of one witness while ignoring
the similar testimony of another. In either event, denial of
cross-examination concerning a witness' bias may deprive the
defense of its best opportunity to expose genuine flaws in the Page 475 U. S. 688 prosecution's case -- flaws that the cold record will not reveal
to an appellate court.

															Indeed, an appellate court attempting to apply harmless error
analysis is faced with a formidable burden. The court cannot merely
satisfy itself that the jury would have reached the same result had
the witness in question not appeared at all; it must be convinced
beyond a reasonable doubt that the jury would have reached the same
result even if cross-examination had led the jury affirmatively to
believe that the witness was lying. Moreover, the court must
conclude, beyond a reasonable doubt, that no evidence exculpatory
to the defendant could have emerged from a genuinely adversarial
testing of the witness. I think that a court can make such a
determination only in the rarest of circumstances, and a rule of per se reversal is therefore justified.

															The Confrontation Clause violation in this case is especially
pernicious. The jury was essentially misled, by the empty gesture
of cross-examination, to believe that the defense attorney had been
permitted to use all the tools at his disposal to expose weaknesses
in Fleetwood's testimony. Having survived what appeared to be
counsel's best efforts to undermine the witness' credibility,
Fleetwood's testimony necessarily carried more weight with the jury
than would the same testimony given without an apparent opportunity
to cross-examine.

															This analysis makes it unnecessary to strain, as does the
majority, to reconcile the apparent per se rule of Davis v. Alaska, 415 U. S. 308 (1974), with the harmless error analysis employed in Harrington
v. California, 395 U. S. 250 (1969), and Schneble v. Florida, 405 U.
S. 427 (1972). I would simply hold that Davis mandates reversal whenever the prosecution puts a witness on the
stand but the court does not permit the defense to cross-examine
concerning relevant potential bias. I therefore dissent from the
Court's decision to permit the Delaware Supreme Court to apply Page 475 U. S. 689 harmless error analysis to the Confrontation Clause violation in
this case.

															I also write to emphasize that this Court cannot require state
courts to apply harmless error analysis to violations of the
Federal Constitution. See Connecticut v. Johnson, 460 U. S. 73 , 460 U. S. 88 (1983) (STEVENS, J., concurring in judgment). While this Court has
stated that federal law governs the application of harmless error
to violations of the Federal Constitution, see Chapman v.
California, 386 U. S. 18 , 386 U. S. 21 (1967), that cannot mean more than that state courts must reverse
convictions when the Constitution so mandates. When the
Constitution does not mandate a particular remedy, this Court may
not "declare which of many admittedly constitutional [remedial]
alternatives a State may choose." Id. at 386 U. S. 48 (Harlan, J., dissenting) (footnote omitted). We have never held
that the Federal Constitution forbids state courts to reverse
certain convictions pursuant to state substantive or procedural
law, nor can I imagine what provision of the Constitution could
grant us such a power. Thus the Delaware Supreme Court remains free
on remand to decide that, even though it applied the substantive
standards of the Sixth Amendment to determine whether error
occurred, its harmless error analysis was the product of state,
rather than federal, law.

															JUSTICE STEVENS, dissenting.

															The Court finds the way open to reverse the judgment in this
case because

															"[t]he opinion of the Delaware Supreme Court, which makes use of
both federal and state cases in its analysis, lacks the requisite
'plain statement' that it rests on state grounds." Ante at 475 U. S. 678 ,
n. 3. [ Footnote 2/1 ] In so holding,
the Court Page 475 U. S. 690 continues down the path it marked in Michigan v. Long, 463 U. S. 1032 , 463 U. S.
1037 -1044 (1983), when it announced that it would
henceforth presume jurisdiction to review state court judgments
absent a "plain statement" that such judgments rest on state
grounds. [ Footnote 2/2 ]

															Despite the directness of the route chosen, today's destination
was not foreordained. Unlike Michigan v. Long, this case
concerns whether the Court should presume jurisdiction to review a
state supreme court's remedy for a federal constitutional
violation. Since courts have traditionally enjoyed broad discretion
to fashion remedies -- even remedies forbidding otherwise lawful
acts -- once a constitutional violation Page 475 U. S. 691 has been proved, [ Footnote 2/3 ]
the more logical direction would have been to presume that a state
court is merely exercising its normal supervisory power over state
officials unless it clearly states that federal law requires a
particular procedure to be followed. The Court's contrary
presumption works a further advancement of its own power, but it
flouts this Court's best traditions: it deviates from our normal
approach to questions of subject matter jurisdiction, and it
departs from our longstanding practice of reserving decision on
federal constitutional law. Even considered purely from the
standpoint of managing our own discretionary docket, the Court's
presumption includes a selection bias inconsistent with the lessons
of history as revealed in this Court's statutory jurisdiction over
the judgments of state courts. Finally, the Court's willingness to
presume jurisdiction to review state remedies evidences a lack of
respect for state courts, and will, I fear, be a recurrent source
of friction between the federal and state judiciaries. I The rules that govern this Court's jurisdiction to review state
court judgments should, of course, be consistent with the
jurisdictional principles that govern the entire federal
judicial Page 475 U. S. 692 system. Indeed, because the example that this Court sets for the
entire system inevitably affects the way in which all federal
judges tend to evaluate their own powers, we have a special
obligation to make sure that our conclusions concerning our own
jurisdiction rest on a firm and legitimate foundation.

															In origin and design, federal courts are courts of limited
jurisdiction; they exercise only the authority conferred on them by
Art. III and by congressional enactments pursuant thereto. See
Bender v. Williamsport Area School Dist., ante at 475 U. S. 541 ,
and cases cited therein. Like all other federal courts, this Court
has only the power expressly given it. Because it is our
inescapable duty -- in contrast to that of the political branches
-- to construe authoritatively the very instruments which define
and limit that power, the Court early in its history wisely adopted
a presumption that every federal court is "without jurisdiction"
unless "the contrary appears affirmatively from the record." King Bridge Co. v. Otoe County, 120 U.
S. 225 , 120 U. S. 226 (1887). Accord, Thomas v. Board of Trustees, 195 U.
S. 207 , 195 U. S. 210 (1904); Minnesota v. Northern Securities Co., 194 U. S.
48 , 194 U. S. 62 -63
(1904). That presumption is just as "inflexible" in this Court as
in any other federal court. [ Footnote
2/4 ]

															Even for cases unquestionably within this Court's subject matter
jurisdiction, we have disclaimed any pretension to Page 475 U. S. 693 reach questions arising under the Federal Constitution when an
alternative basis of decision fairly presented itself. Thus, in one
of the most respected opinions ever written by a Member of this
Court, Justice Brandeis wrote:

															"The Court [has] developed, for its own governance in the cases
confessedly within its jurisdiction, a series of rules under which
it has avoided passing upon a large part of all the constitutional
questions pressed upon it for decision. They are:"

															" * * * *" ". . . The Court will not pass upon a [federal] constitutional
question although properly presented by the record, if there is
also present some other ground upon which the case may be disposed
of." Ashwander v. TVA, 297 U. S. 288 , 297 U. S.
346 -347 (1936) (concurring opinion). [ Footnote 2/5 ]

															The Court has remained faithful to these basic tenets when it is
reviewing cases that arise in the federal system. See Bender v.
Williamsport Area School Dist., ante at 475 U. S.
545 -549; Regents of University of Michigan v.
Ewing, 474 U. S. 214 , 474 U. S.
222 -223 (1985). Ironically, however -- and contrary to
tradition [ Footnote 2/6 ] -- the
Court has taken a different stance when it is Page 475 U. S. 694 asked to review cases coming to us from state courts.
Although

															"[w]e cannot perform our duty to refrain from interfering in
state law questions and also to review federal ones without making
a determination whether the one or the other controls the
judgment," Herb v. Pitcairn, 324 U. S. 117 , 324 U. S.
125 -126 (1945), the jurisdictional precepts that serve
us so well in reviewing judgments rendered in federal court merit
observance in review of state court judgments too. Abjuring the
federal analogy, the Court unwisely marks for special scrutiny the
decisions of courts to which I believe it owes special respect. II The jurisdictional presumption that the Court applies -- and
extends -- today harbors a hidden selection bias that, in turn,
reveals a disturbing conception of this Court's role. Because a
state ground can only support a judgment consistent with
a Page 475 U. S. 695 federal claim, the Court's jurisdictional presumption operates
to expand this Court's review of state remedies that overcompensate
for violations of federal constitutional rights. Historically,
however, such cases have been outside the province of this Court.
For well over a century the Judiciary Act of 1789 denied this Court
authority to review state court judgments upholding federal claims.
[ Footnote 2/7 ] By conferring no
power to review these judgments, "the first Congress assembled
under the Constitution" -- whose Members had "taken part in framing
that instrument," Wisconsin v. Pelican Ins. Co., 127 U. S. 265 , 127 U. S. 297 (1888), in addition to having enacted the First Judiciary Act --
codified their conviction that this Court's overriding concern was
to ensure that state courts respect federal rights. Only in 1914
did Congress authorize this Court to take jurisdiction over state
court judgments upholding claims of federal constitutional right,
Act of Dec. 23, 1914, 38 Stat. 790, and even that legislation
reflected an understanding Page 475 U. S. 696 that the Court's role is primarily to vindicate such rights.
[ Footnote 2/8 ] Most of the bills on
this subject gave

															"the litigant an absolute right to appeal or take a writ of
error to Page 475 U. S. 697 the Supreme Court . . . even though the decision is in favor of
a claim of right under the Federal Constitution."

															S.Rep. No. 161, 63d Cong., 2d Sess., 2 (1914). Rather than adopt
these bills, which would have placed uniformity of federal law on a
par with vindication of federal rights by making review of such
judgments at least nominally mandatory, Congress

															"substitute[d] a grant of jurisdiction to the Supreme Court of
the United States to issue a writ of certiorari or otherwise to
review the decision of the State court." Ibid. Compare Act of Sept. 24, 1789, § 25, 1
Stat. 85-86, with Act of Dec. 23, 1914, 38 Stat. 790.
Thus, although this Court now has the power to review decisions
defending federal constitutional rights, the claim of these cases
on our docket is secondary to the need to scrutinize judgments
disparaging those rights. [ Footnote
2/9 ] Page 475 U. S. 698 When the state court decision to be reviewed is ambiguous, and
it is not even clear that the judgment rests on a federal ground,
the basis for exercising jurisdiction is even less tenable. III The Court's decision to monitor state court decisions that may
or may not rest on nonfederal grounds is not only historically
disfavored, but risks the very confrontations and tensions a more
humble jurisdictional stance would avoid. The presumption applied
today allocates the risk of error in favor of the Court's power of
review; as a result, over the long run, Page 475 U. S. 699 the Court will inevitably review judgments that, in fact, rest
on adequate and independent state grounds. Even if the Court is
unconcerned by the waste inherent in review of such cases, even if
it is unmoved by the incongruity between the wholly precatory
nature of our pronouncements on such occasions and Art. III's
prohibition of advisory opinions, it should be concerned by the
inevitable intrusion upon the prerogatives of state courts that can
only provide a potential source of friction, and thereby threaten
to undermine the respect on which we must depend for the faithful
and conscientious application of this Court's expositions of
federal law.

															Less obvious is the impact on mutual trust when the state court
on remand -- perhaps out of misplaced sense of duty -- confines its
state constitution to the boundaries marked by this Court for the
Federal Constitution. In Montana v. Jackson, 460 U.
S. 1030 (1983), for example, this Court vacated and
remanded "for further consideration in light of South Dakota v.
Neville, 459 U. S. 553 (1983)." In so doing, this Court presumed that the judgment of the
Montana Supreme Court did not rest on Montana's Constitution.
Justice Sheehy, joined by the author of the state court's original
opinion, rather bitterly disagreed:

															"In our original opinion in this case, we had examined the
rights guaranteed our citizens under state constitutional
principles, in the light of federal constitutional decisions. Now
the United States Supreme Court has interjected itself, commanding
us in effect to withdraw the constitutional rights which we felt we
should extend to our state citizens back to the limits pr[e]scribed
by the federal decisions. Effectively, the United States Supreme
Court has intruded upon the rights of the judiciary of this
sovereign state."

															"Instead of knuckling under to this unjustified expansion of
federal judicial power into the perimeters of our state power, we
should show our judicial displeasure by insisting that, in Montana,
this sovereign state can interpret Page 475 U. S. 700 its constitution to guarantee rights to its citizens greater
than those guaranteed by the federal constitution."

															"If a majority of this Court had the will to press the issue, we
could put the question to the United States Supreme Court
four-square, that this State judiciary has the right to interpret
its constitution in the light of federal decisions, and to go
beyond the federal decisions in granting and preserving rights to
its citizens under its state constitution." State v. Jackson, 206 Mont. 338, 349-351, 672 P.2d 255,
260-261 (1983) (Sheehy, J., dissenting). See id. at
357-358, 672 P.2d at 264-265 (Shea, J., dissenting).

															The Court's two-sentence analysis notwithstanding, one cannot be
confident that we have not trenched on state prerogatives in this
very case. Here, the Delaware Supreme Court applied a rule
reversing convictions when the defendant had been totally denied
the right to cross-examine a witness for bias. The rule was
expressly found to be

															"consistent with Davis v. Alaska, 415 U. S.
308 (1974) and with our ruling in Weber [v.
State, 457 A.2d
674 (1983),] for determining whether a violation of the
confrontation clause is harmless." 486
A.2d 1 , 7 (1984) (emphasis added and citations omitted). Weber itself emphasized that

															"[b]oth the United States and Delaware Constitutions guarantee
the right of a defendant to confront the witnesses against him.
U.S.Const. amend. VI; Del. Const. art. I, § 7." Weber v. State, 457 A.2d at 682 (footnote omitted). At
no point did the Delaware Supreme Court imply that it reversed the
defendant's conviction only because that result was compelled by
its understanding of federal constitutional law; rather, the
conclusion that its rule was "consistent with" a case of this Court
construing the federal Confrontation Clause suggests that it was
interested merely in respecting the bounds of federal law, as
opposed to carrying out its command. The Court rewards Page 475 U. S. 701 the Delaware Supreme Court's circumspection by unceremoniously
reversing its judgment. IV I agree with JUSTICE MARSHALL that

															"the Delaware Supreme Court remains free on remand to decide
that . . . its harmless error analysis was the product of state,
rather than federal, law." Ante at 475 U. S. 689 .
Because the Court's approach does nothing to minimize, and indeed
multiplies, future occasions on which state courts may be called
upon to clarify whether their judgments were in fact based on state
law, it is appropriate to amplify the opinion I expressed in Massachusetts v. Upton, 466 U. S. 727 , 466 U. S. 736 (1984) (concurring in judgment), that the proper "sequence of
analysis when an arguable violation of the State Constitution is
disclosed by the record" is for the state court to consider the
state constitutional claim in advance of any federal constitutional
claim. In that case, I described the Oregon Supreme Court's
practice of considering state constitutional claims before reaching
issues of federal constitutional law:

															"'The proper sequence is to analyze the state's law, including
its constitutional law, before reaching a federal constitutional
claim. This is required, not for the sake either of parochialism or
of style, but because the state does not deny any right claimed
under the federal Constitution when the claim before the court in
fact is fully met by state law.' Sterling v. Cupp, 290
Ore. 611, 614, 625 P.2d
123 , 126 (1981)." Massachusetts v. Upton, 466 U.S. at 466 U. S. 736 .
[ Footnote 2/10 ] Page 475 U. S. 702 Since that time, at least four other state courts have expressly
endorsed the practice of considering state constitutional claims
first. [ Footnote 2/11 ] In
response to Michigan v.
Long , 463 Page 475 U. S. 703 U.S. 1032 (1983), for example, the New Hampshire Supreme Court
concluded:

															"When a defendant, as in this case, has invoked the protections
of the New Hampshire Constitution, we will first address these
claims. Page 475 U. S. 704 "

															". . . We live under a unique concept of federalism and divided
sovereignty between the nation and fifty States. The New Hampshire
Constitution is the fundamental charter of our State. The sovereign
people gave limited powers to the State government, and the Bill of
Rights in part I of the New Hampshire Constitution protects the
people from governmental excesses and potential abuses. When State
constitutional issues have been raised, this court has a
responsibility to make an independent determination of the
protections afforded in the New Hampshire Constitution. If we
ignore this duty, we fail to live up to our oath to defend our
constitution and we help to destroy the federalism that must be so
carefully safeguarded by our people. The Supreme Court of the State
of Oregon recently recognized this responsibility and stated:"

															"The point is . . . that a state's constitutional guarantees . .
. were meant to be and remain genuine guarantees against misuse of
the state's governmental powers, truly independent of the rising
and falling tides of federal case law both in method and specifics.
State courts cannot abdicate their responsibility for these
independent guarantees, at least not unless the people of the State
themselves choose to abandon them and entrust their rights entirely
to federal law."

															" State v. Kennedy, 295 Or. 260, 271, 666 P.2d
1316 , 1323 (1983)." State v. Ball, 124 N. H. 226, 231, 471 A.2d 347, 350
(1983). Since 1983, in over a dozen cases, [ Footnote 2/12 ] the New Hampshire Supreme Court has
thereby averted unnecessary disquisitions on the meaning of the
Federal Constitution. Page 475 U. S. 705 The emerging preference for state constitutional bases of
decision in lieu of federal ones is, in my view, the analytical
approach best suited to facilitating the independent role of state
constitutions and state courts in our federal system. There is much
wisdom in THE CHIEF JUSTICE's admonition that

															"State courts . . . are responsible first for resolving issues
arising under their constitutions and statutes and then for passing
on matters concerning federal law."

															Year-End Report on the Judiciary 18 (1981).

															It must be remembered that every State but Rhode Island had a
written constitution by the close of the Revolutionary War in
1783.

															"[F]or the first century of this Nation's history, the Bill of
Rights of the Constitution of the United States was solely a
protection for the individual in relation to federal authorities.
State Constitutions protected the liberties of the people of the
several States from abuse by state authorities." Massachusetts v. Upton, 466 U.S. at 466 U. S.
738 -739 (STEVENS, J., concurring in judgment). The
independent significance of state constitutions clearly informed
this Court's conclusion, in Barron v. The Mayor and City
Council of Baltimore , 7 Pet. 243, 32 U. S.
247 -248 (1833), that the Bill of Rights applied only to
the Federal Government:

															"The question thus presented is, we think, of great importance,
but not of much difficulty."

															"The constitution was ordained and established by the people of
the United States for themselves, for their own Page 475 U. S. 706 government, and not for the government of the individual states.
Each state established a constitution for itself, and, in that
constitution, provided such limitations and restrictions on the
powers of its particular government as its judgment dictated."

															". . . In their several constitutions, they have imposed such
restrictions on their respective governments as their own wisdom
suggested; such as they deemed most proper for themselves. It is a
subject on which they judge exclusively, and with which others
interfere no farther than they are supposed to have a common
interest."

															While the holding of the Barron case has since been
superseded by ratification of the Fourteenth Amendment and
selective incorporation of the Bill of Rights, the concomitant
atrophy of state constitutional theory was both unnecessary and
unfortunate. [ Footnote 2/13 ]
State constitutions preceded the Federal Constitution, and were
obviously intended to have independent significance. [ Footnote 2/14 ] The frequent amendments to
state Page 475 U. S. 707 constitutions likewise presuppose their continued importance.
Thus, whether the national minimum set by the Federal Constitution
is high or low, state constitutions have their own unique origins,
history, language, and structure -- all of which warrant
independent attention and elucidation. State courts remain
primarily responsible for reviewing the conduct of their own
executive branches, for safeguarding the rights of their citizenry,
and for nurturing the jurisprudence of state constitutional rights
which it is their exclusive province to expound. [ Footnote 2/15 ] Page 475 U. S. 708 Because I would not presume that the Delaware Supreme Court
failed to discharge this responsibility, I would dismiss the
writ.

															[ Footnote 2/1 ]

															A determination that a state court judgment rests on a federal
ground is a prerequisite to the exercise of our jurisdiction in
such a case. See Fox Film Corp. v. Muller, 296 U.
S. 207 , 296 U. S. 210 (1935) ("[W]here the judgment of a state court rests upon two
grounds, one of which is federal and the other nonfederal in
character, our jurisdiction fails if the nonfederal ground is
independent of the federal ground, and adequate to support the
judgment"); Murdock v. City of
Memphis , 20 Wall. 590, 87 U. S. 626 , 87 U. S. 633 , 87 U. S. 641 (1875) (construing requirement as part of jurisdictional statute). See also Sandalow, Henry v. Mississippi and the Adequate
State Ground: Proposals for a Revised Doctrine, 1965 S.Ct.Rev. 187,
188-189, and n. 6 (discussing possible constitutional basis for the
adequate and independent state ground rule).

															[ Footnote 2/2 ]

															The principal question in Michigan v. Long was whether
a state court's determination that a search violated the State
Constitution was independent of its conclusion that it violated the
Federal Constitution. The Court surveyed the various approaches,
decided that "none of [them] thus far recommends itself as the
preferred method," 463 U.S. at 463 U. S.
1039 , and then selected the presumption it did as the
most administrable of the available choices, id. at 463 U. S.
1041 . I agreed with the Court that "we are left with a
choice between two presumptions: one in favor of our taking
jurisdiction, and one against it," id. at 463 U. S.
1066 , but explained that, "in reviewing the decisions of
state courts, the primary " -- although not exclusive --
"role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard," id. at 463 U. S.
1068 (first emphasis added). See Florida v.
Meyers, 466 U. S. 380 , 466 U. S. 385 (1984) (STEVENS, J., dissenting) ("But we must not forget that a
central purpose of our written Constitution, and more specifically
of its unique creation of a life-tenured federal judiciary, was to
ensure that certain rights are firmly secured against possible oppression by the Federal or State Governments"). Compare
the Michigan v. Long Court's misreading of my dissent
as

															"propos[ing] the novel view that this Court should never review a state court decision unless the Court
wishes to vindicate a federal right that has been endangered."

															463 U.S. at 463 U. S.
1043 , n. 8 (emphasis added).

															[ Footnote 2/3 ] See, e.g., Teachers v. Hudson, ante at 475 U. S.
309 -310, n. 22, and cases cited therein. As I explained
in my opinion concurring in the judgment in Connecticut v.
Johnson, 460 U. S. 73 , 460 U. S. 88 (1983) (footnotes omitted):

															"If federal constitutional error occurs in a state criminal
trial, federal law places certain limits on the state appellate
court's disposition of the case. If the error is sufficiently
grievous, it must reverse. If the error is less grievous,
it also must reverse unless it declares its conviction beyond a
reasonable doubt that the federal error was harmless. But federal
law does not require a state appellate court to make a
harmless error determination; it merely permits the state
court to do so in appropriate cases. This is all the Court held in Chapman v. California, 386 U. S. 18 (1967)."

															JUSTICE MARSHALL is therefore quite right to point out that
"this Court cannot require state courts to apply harmless
error analysis to violations of the Federal Constitution." Ante at 475 U. S.
689 .

															[ Footnote 2/4 ] Cf. Mansfield C. & L. M. R. Co. v. Swan, 111 U. S. 379 , 111 U. S. 382 (1884) ("[T]he rule, springing from the nature and limits of the
judicial power of the United States, is inflexible and without
exception, which requires this court, of its own motion, to deny
its own jurisdiction, and, in the exercise of its appellate power,
that of all other courts of the United States, in all cases where
such jurisdiction does not affirmatively appear in the record on
which, in the exercise of that power, it is called to act. On every
writ of error or appeal, the first and fundamental question is that
of jurisdiction, first, of this court, and then of the court from
which the record comes. This question the court is bound to ask and
answer for itself, even when not otherwise suggested, and without
respect to the relation of the parties to it").

															[ Footnote 2/5 ] See, e.g., Siler v. Louisville & Nashville R. Co., 213 U. S. 176 , 213 U. S. 193 (1909) (duty of the Federal District Court to decide first a
question of state law, over which it has merely pendent
jurisdiction, in order to avoid, if possible, a federal
constitutional question); Santa Clara County v. Southern
Pacific R. Co., 118 U. S. 394 , 118 U. S.
410 -411, 118 U. S.
416 -417 (1886). Pennhurst State School &
Hospital v. Halderman, 465 U. S. 89 (1984), did not qualify this avoidance principle; it held only that
the Eleventh Amendment proscribed the award of injunctive relief
for violations of state law in certain cases, thereby removing the
basis for avoiding decision of federal constitutional questions in
this class of cases. See id. at 465 U. S. 119 ,
n. 28 ("Nothing in our decision is meant to cast doubt on the
desirability of applying the Siler principle in cases
where the federal court has jurisdiction to decide the state law
issues").

															[ Footnote 2/6 ]

															The Court's time-honored "policy of strict necessity in
disposing of [federal] constitutional issues," by which
"constitutional issues . . . will not be determined if the record
presents some other ground upon which the case may be disposed of," Rescue Army v. Municipal Court, 331 U.
S. 549 , 331 U. S. 568 , 331 U. S. 569 (1947), received one of its most forceful expositions in an appeal
from a judgment rendered by a state court:

															"[T]he policy . . . is one of substance, grounded in
considerations which transcend all such particular limitations.
Like the case and controversy limitation itself and the policy
against entertaining political questions, it is one of the rules
basic to the federal system and this Court's appropriate place
within that structure."

															" * * * *" "The policy's ultimate foundations, some if not all of which
also sustain the jurisdictional limitation, lie in all that goes to
make up the unique place and character, in our scheme, of judicial
review of governmental action for constitutionality. They are found
in the delicacy of that function, particularly in view of possible
consequences for others stemming also from constitutional roots;
the comparative finality of those consequences; the consideration
due to the judgment of other repositories of constitutional power
concerning the scope of their authority; the necessity, if
government is to function constitutionally, for each to keep within
its power, including the courts; the inherent limitations of the
judicial process, arising especially from its largely negative
character and limited resources of enforcement; withal in the
paramount importance of constitutional adjudication in our
system." Id. at 331 U. S.
568 -571 (footnotes omitted).

															[ Footnote 2/7 ]

															Section 25 of the Act of Sept. 24, 1789, 1 Stat. 85-86, as the
First Judiciary Act was also known, provided for review only if the
validity of a treaty or of a federal or state statute or
"authority," or the construction of a federal treaty, statute, or
commission of the Constitution was drawn in question, and then only
if "the decision [was] against their validity" or "against the
title, right, privilege or exemption" claimed.

															In 1867, the post-Civil War Congress, which was not overly
concerned with state sovereignty, revised the section to allow
review without respect to questions of validity or
construction,

															"where any title, right, privilege, or immunity is claimed under
the constitution, or any treaty or statute of or commission held,
or authority exercised under the United States."

															Act of Feb. 5, 1867, § 2, 14 Stat. 386. The question raised by
this amendment, however, was not whether the Court could or should
review state court decisions in favor of federal constitutional
claims, but whether the amendment had effected an implied repeal of
the doctrine that the Court could review only federal questions in cases subject to review -- a question answered
emphatically in the negative in Murdock v.
Memphis , 20 Wall. 590 (1875). (According to
Professor Charles Warren, it is "highly probable" that Congress
actually meant to provide that "every question passed on by the
State Court should be open for reconsideration in the Supreme
Court." 2 C. Warren, The Supreme Court in United States History 682
(rev. ed.1926)).

															[ Footnote 2/8 ]

															The legislation was a response to the New York Court of Appeals' Lochner -style substantive due process decision in Ives
v. South Buffalo R. Co., 201 N.Y. 271, 94 N.E. 431 (1911). See, e.g., S.Rep. No. 161, 63d Cong., 2d Sess., 2 (1914);
H.R.Rep. No. 1222, 63d Cong., 3d Sess., 2-3 (1914); 52 Cong.Rec.
276 (1914) (remarks of Rep. Webb). In the Ives case, the
Court of Appeals held New York's newly enacted workmen's
compensation statute unconstitutional because it imposed on the
railroad the obligation to pay for injuries for which it was not at
fault. 201 N.Y. at 292-317, 94 N.E. at 439-449. By the 1914
legislation, Congress intended to redress a seeming discrimination
in favor of railroads and other large economic interests which,
under the virulent substantive due process doctrine of the day,
could obtain review of challenges to state reform legislation in
the Supreme Court if they lost in the highest state court, but
whose judgment in state court was protected from review in the
Supreme Court if it won. See, e.g., 62 Cong.Rec. supra, at 277 (remarks of Rep. Volstead) ("The cases that
are taken to the courts for the purpose of having a statute
declared unconstitutional are, I believe, in the great majority of
cases, taken there by the large corporate interests. . . . If they
succeed in having those laws set aside in a State court, that ends
it under the law as it now stands. The other side cannot appeal. If
they fail to have the statute declared void in a State court, they
can appeal to the Supreme Court of the United States and have
another chance there to effect their purpose. . . . We ought to
allow equal treatment to all parties, and not favor these large
interests"). See also H.R.Rep. No. 1222, supra, at 2-3; 62 Cong.Rec., supra, at 276 (remarks of Rep.
Webb); ibid. (quoting letter from Mr. Wheeler of New
York); id. at 277 (remarks of Rep. Lewis).

															Although Congress' response to the Ives case
demonstrates that there are cases in which a state court's judgment
vindicating a federal claim merits review, that view is perfectly
consistent with the traditional understanding that the primary
function of this Court is to review decisions rejecting such
claims. Indeed, the facts of Ives belie any suggestion
that Congress intended searching review of state court decisions
upholding claims of federal right. The workmen's compensation
legislation was of exceptional importance to the State of New York,
as attested to by the fact that it represented the labor of a
14-person commission chaired by a United States Senator, 201 N.Y.
at 284, 94 N.E. at 435-436, and was

															"based upon a most voluminous array of statistical tables,
extracts from the works of philosophical writers and the industrial
laws of many countries, all of which are designed to show that our
own system of dealing with industrial accidents is economically,
morally and legally unsound," id. at 287, 94 N.E. at 437. (In response to Ives, the people of New York amended their Constitution to
allow for legislation of this kind. S.Rep. No. 161, supra, at 2; H.R.Rep. No. 1222, supra, at 3.) Not only was this
particular statute of great concern to New York, but the
constitutionality of legislation of this kind was unsettled:
"Similar laws were held constitutional in New Jersey, the State of
Washington, and some other States." H.R.Rep. No. 1222, supra, at 2. See 52 Cong.Rec., supra, at
276 (remarks of Rep. Webb) (New Jersey).

															[ Footnote 2/9 ]

															There is strong scholarly support for this view. For example,
Dean Choper

															"submits that the essential role of judicial review in our
system is to prevent violations of that category of constitutional
provisions that secure individual liberties."

															J. Choper, Judicial Review and the National Political Process 2
(1980). See id. at 64-65.

															Professor Dworkin makes a similar point:

															"The institution of rights against the Government is not a gift
of God, or an ancient ritual, or a national sport. It is a complex
and troublesome practice that makes the Government's job of
securing the general benefit more difficult and more expensive, and
it would be a frivolous and wrongful practice unless it served some
point. Anyone who professes to take rights seriously, and who
praises our Government for respecting them, must have some sense of
what that point is. He must accept, at the minimum, one or both of
two important ideas. The first is the vague but powerful idea of
human dignity. This idea, associated with Kant, but defended by
philosophers of different schools, supposes that there are ways of
treating a man that are inconsistent with recognizing him as a full
member of the human community, and holds that such treatment is
profoundly unjust."

															"The second is the more familiar idea of political equality.
This supposes that the weaker members of a political community are
entitled to the same concern and respect of their government as the
more powerful members have secured for themselves, so that, if some
men have freedom of decision whatever the effect on the general
good, then all men must have the same freedom. I do not want to
defend or elaborate these ideas here, but only to insist that
anyone who claims that citizens have rights must accept ideas very
close to these."

															"It makes sense to say that a man has a fundamental right
against the Government, in the strong sense, like free speech, if
that right is necessary to protect his dignity, or his standing as
equally entitled to concern and respect, or some other personal
value of like consequence. It does not make sense otherwise."

															"So if rights make sense at all, then the invasion of a
relatively important right must be a very serious matter. It means
treating a man as less than a man, or as less worthy of concern
than other men. The institution of rights rests on the conviction
that this is a grave injustice, and that it is worth paying the
incremental cost in social policy or efficiency that is necessary
to prevent it. But then it must be wrong to say that inflating
rights is as serious as invading them. If the Government err on the
side of the individual, then it simply pays a little more in social
efficiency than it has to pay; it pays a little more, that is, of
the same coin that it has already decided must be spent. But if it
errs against the individual, it inflicts an insult upon him that,
on its own reckoning, it is worth a great deal of that coin to
avoid."

															R. Dworkin, Takings Rights Seriously 198-199 (1977).

															[ Footnote 2/10 ]

															"[T]he basis for th[e] claim in the state constitution should be
examined first, before any issue under the federal fourteenth
amendment. To begin with the federal claim, as is customarily done,
implicitly admits that the guarantees of the state's constitution
are ineffective to protect the asserted right, and that only the
intervention of the federal constitution stands between the
claimant and the state. . . . [I]nsofar as the federal fourteenth
amendment is invoked to apply the federal Bill of Rights against
state action, particularly in the fields of freedom of ideas,
criminal procedure, and compensation for the taking of property,
there is no reason to accept such an assumption that the values
enshrined in a state's constitution, in, say, 1859, must today fall
short of those in the federal Bill of Rights of 1789. And to add a
reference to the corresponding state provision as an afterthought
to a holding under the federal guarantee is worse than merely
backwards: a holding that a state constitutional provision protects
the asserted claim in fact destroys the premise for a holding that
the state is denying what the federal Constitution would
assure."

															Linde, Without "Due Process", 49 Ore.L.Rev. 125, 182 (1970). Accord, Linde, E Pluribus -- Constitutional Theory and
State Courts, 18 Ga.L.Rev. 165, 178 (1984) ("My own view has long
been that a state court always is responsible for the law of its
state before deciding whether the state falls short of a national
standard, so that no federal issue is properly reached when the
state's law protects the claimed right" (footnote omitted)); Linde,
First Things First: Rediscovering the States' Bills of Rights, 9
U.Balt.L.Rev. 379, 383 (1980) ("Just as rights under the state
constitutions were first in time, they are first also in the logic
of constitutional law"). For thoughtful discussion of other views, see Utter, Swimming in the Jaws of the Crocodile: State
Court Comment on Federal Constitutional Issues when Disposing of
Cases on State Constitutional Grounds, 63 Texas L.Rev. 1025 (1985)
(advocating that state courts comment on federal issues even in
cases decided on state constitutional grounds); Developments in the
Law -- The Interpretation of State Constitutional Rights, 95
Harv.L.Rev. 1324, 1356-1367 (1982) (contending that state
constitutions should be used only to supplement individual rights
in the event that protection under the Federal Constitution is
unavailable).

															[ Footnote 2/11 ] See, e.g., Large v. Superior Court, 148 Ariz. 229, 235, 714 P.2d
399 , 405 (1986) ("Because petitioner did not articulate whether
he was proceeding under the federal or state due process clause,
and because the provisions of our state constitution settle the
matter, we address only the state constitutional issue. In
construing the Arizona Constitution we refer to federal
constitutional law only as the benchmark of minimum constitutional
protection" (citations omitted)); City of Portland v.
Jacobsky, 496 A.2d
646 , 648 (Me.1985) ("Just as we avoid expressing opinions on
constitutional questions when the issue before us on appeal may be
otherwise resolved, a similar policy of judicial restraint impels
us to forbear from ruling on federal constitutional questions when
the provisions of our state constitution may settle the matter"
(citations omitted)); State v. Chaisson, 125 N. H. 810,
814-815, 486 A.2d 297, 301 (1984) ("Next, the defendant contends
that his warrantless arrest violated both the Federal and the State
Constitutions, and that the fruits of that arrest therefore should
have been suppressed at trial. We, of course, address the State
constitutional issues first. In construing the State constitution,
we refer to Federal constitutional law as only the benchmark
minimum constitutional protection" (citations omitted)); State
v. Coe, 101 Wash. 2d
364 , 373-374, 679 P.2d
353 , 359 (1984) ("Whether the prior restraint was
constitutionally valid or invalid should be treated first under our
state constitution, for a number of reasons. First, state courts
have a duty to independently interpret and apply their state
constitutions that stems from the very nature of our federal system
and the vast differences between the federal and state
constitutions and courts. Second, the histories of the United
States and Washington Constitutions clearly demonstrate that the
protection of the fundamental rights of Washington citizens was
intended to be and remains a separate and important function of our
state constitution and courts that is closely associated with our
sovereignty. By turning to our own constitution first, we grant the
proper respect to our own legal foundations and fulfill our
sovereign duties. Third, by turning first to our own constitution,
we can develop a body of independent jurisprudence that will assist
this court and the bar of our state in understanding how that
constitution will be applied. Fourth, we will be able to assist
other states that have similar constitutional provisions develop a
principled, responsible body of law that will not appear to have
been constructed to meet the whim of the moment. Finally, to apply
the federal constitution before the Washington Constitution would
be as improper and premature as deciding a case on state
constitutional grounds when statutory grounds would have sufficed,
and for essentially the same reasons"). See also Collins,
Reliance on State Constitutions: Some Random Thoughts, 54 Miss.
L.J. 371, 389-394, and nn. 56-58, 69-72 (1984) (citing cases). See generally Abrahamson, Criminal Law and State
Constitutions: The Emergence of State Constitutional Law, 63 Texas
L.Rev. 1141, 1157-1158, n. 54 (1985) (discussing practice in state
courts generally).

															To implement this practice of considering state constitutional
issues in advance of federal ones, state high courts have directed
parties to file supplemental briefs illuminating possible state
constitutional bases of decision when the initial briefings have
neglected such issues. See State v. Kennedy, 295 Ore. 260,
268, 666 P.2d
1316 , 1321 (1983). Cf. State v. Jewett, 146 Vt. 221,
222, 500 A.2d 233 ,
234 (1985).

															[ Footnote 2/12 ] See Hopps v. State Bd. of Parole, 127 N. H. 133, 135,
500 A.2d 355, 356 (1985); State v. Cooper, 127 N. H. 119,
122, 498 A.2d 1209, 1212 (1985); State v. Dayutis, 127 N.
H. 101, 105, 498 A.2d 325, 328 (1985); State ex rel. McLellan
v. Cavanaugh, 127 N. H. 33, 37, 498 A.2d 735, 738 (1985); State v. Langone, 127 N. H. 49, 51-52, 498 A.2d 731, 733
(1985); State v. Corey, 127 N. H. 56, 57, 497 A.2d 1196,
1197 (1985); State v. Farasi, 127 N. H. 1, 4-5, 498 A.2d
723, 726 (1985); State v. Camargo, 126 N. H. 766, 769, 498
A.2d 292, 295 (1985); State v. Barham, 126 N. H. 631, 636,
495 A.2d 1269, 1273 (1985); State v. Farnsworth, 126 N. H.
656, 659, 497 A.2d 835, 836 (1985); State v. Cimino, 126
N. H. 570, 572, 493 A.2d 1197, 1200 (1985); State v. Cote, 126 N. H. 514, 521-522; 493 A.2d 1170, 1175 (1985); State v.
Chaison, 125 N. H. 810, 815, 486 A.2d 297, 301 (1984).

															[ Footnote 2/13 ]

															To quote the Vermont Supreme Court:

															"One longs to hear once again of legal concepts, their meaning
and their origin. All too often, legal argument consists of a
litany of federal buzz words memorized like baseball cards. As
Justice Linde has noted:"

															"People do not claim rights against self-incrimination, they
'take the fifth' and expect ' Miranda warnings.' Unlawful
searches are equated with fourth amendment violations. Journalists
do not invoke freedom of the press, they demand their first
amendment rights. All claims of unequal treatment are phrased as
denials of equal protection of the laws." State v. Jewett, 146 Vt., at 223, 500 A.2d at 235
(footnote omitted).

															[ Footnote 2/14 ]

															The early state Bills of Rights were, in fact, specifically
motivated by the interest in protecting the individual against
overreaching by the majority:

															"In the period following independence, the state legislatures
became increasingly active, enacting a great variety of laws. To
many Americans, much of this legislation appeared to serve the
special interests of some groups at the expense of others.
Moreover, much of it was thought to violate the natural rights of
individuals. For example, the Pennsylvania Council of Censors
issued a report in 1784 that listed many examples of legislative
violations of the state constitution and bill of rights. The report
showed that 'fines had been remitted, judicially established claims
disallowed, verdicts of juries set aside, the property of one given
to another, defective titles secured, marriages dissolved,' and so
forth. Similar abuses were also taking place in New Hampshire and
other states. The injustice of these laws, as James Madison said,
brought 'into question the fundamental principle of republican
Government, that the majority who rule in such governments are the
safest Guardians both of public Good and private rights.' By the
end of the 1780's,"

															"the Americans' inveterate suspicion and jealousy of political
power, once concentrated almost exclusively on the Crown and its
agents, was transferred to the various state legislatures."

															" * * * *" "As Americans became more distrustful of democracy, Whig
political theory gradually declined and Federalist theory became
predominant. Americans began to impose greater restrictions on
their legislatures in order to safeguard individual rights. In the
1770's and 1780's, more and more rights were added to bills of
rights. Moreover, the power of the legislatures to limit or
alienate rights was steadily reduced. Increasingly, bills of rights
became binding on legislatures. Instead of saying merely that the
legislature 'ought' not abridge certain rights, bills of rights
began to provide that it 'shall' not do so. The prevailing view
among the Federalists was that the authority of the legislature and
of government generally should extend only to a relatively narrow
range of issues."

															"In summary, during the revolutionary period a 'tidal-wave of
democracy . . . swept over the colonies.' Thereafter, during the
1780's, those waters receded and another wave swept in: a wave of
concern about protecting 'private rights against uncontrolled
legislative power.'"

															Elfenbein, The Myth of Conservatism as a Constitutional
Philosophy, 71 Iowa L.Rev. 401, 472-474 (1986).

															[ Footnote 2/15 ]

															This would facilitate the work of federal courts, which, under
this Court's precedents, must address issues of state
constitutional law before considering claims under the Federal
Constitution. See City of Mesquite v. Aladin's Castle,
Inc., 455 U. S. 283 , 455 U. S.
294 -295 (1982) ("[T]here is no need for decision of the
federal [constitutional] issue" if the state constitution provides
"independent support"); cf. Askew v. Hargrave, 401 U. S. 476 , 401 U. S. 478 (1971) (abstention under Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941)); Reetz v. Bozanich, 397 U. S.
82 , 397 U. S. 85 (1970) (same). There exists a growing recognition among Federal
Courts of Appeals that it is incumbent upon them to resolve issues
of state constitutional law before reaching issues arising under
the Federal Constitution. See, e.g, Carreras v. City of
Anaheim, 768 F.2d 1039, 1042-1043 (CA9 1985); Seals v.
Quarterly County Court of Madison County, Tenn., 562 F.2d 890,
892 (CA6 1977).