Syllabus | Opinion [ Souter ] | Concurrence [ Scalia ] |
---|---|---|
HTML version PDF version | HTML version PDF version | HTML version PDF version |
UNITED STATES, PETITIONER v.
CARLOS
DOMINGUEZ BENITEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 14, 2004]
Justice Scalia, concurring in the judgment.
I agree with much of the Courts opinion and concur in its disposition of the case. I do not, however, agree with its holding that respondent need not show prejudice by a preponderance of the evidence. Ante, at 9, n. 9.
By my count, this Court has adopted
no fewer than four assertedly different standards of
probability relating to the assessment of whether the outcome
of trial would have been different if error had
not occurred, or if omitted evidence had been included.
See Chapman v. California, 386 U.S. 18, 24 (1967)
(adopting harmless beyond a reasonable doubt
standard for preserving, on direct review, conviction obtained
in a trial where constitutional error occurred); Brecht
v. Abrahamson, 507 U.S. 619, 637
(1993) (rejecting Chapman in favor of the less
defendant-friendly
For purposes of estimating what would have happened, it seems to me that the only serviceable standards are the traditional beyond a reasonable doubt and more likely than not. We should not pretend to a higher degree of precision. I would not, therefore, extend our reasonable probability standard to the plain-error context. I would hold that, where a defendant has failed to object at trial, and thus has the burden of proving that a mistake he failed to prevent had an effect on his substantial rights, he must show that effect to be probable, that is, more likely than not.