Claim That Jury Instructed On Multiple Theories May Have Found Guilt On Invalid One Is Subject to Harmless Error Review

Hedgpeth v. Pulido, No. 07-544 (U.S. Dec. 2, 2008) (per curiam)

The opening paragraph of today's opinion from the Supreme Court sums up the decision tidily:

A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. See Stromberg v. California, 283 U. S. 359 (1931); Yates v. United States, 354 U. S. 298(1957). In this case the Court of Appeals for the Ninth Circuit held that such an error is "structural error," requiring that the conviction be set aside on collateral review without regard to whether the flaw in the instructions prejudiced the defendant. The parties now agree that the Court of Appeals was wrong to categorize this type of error as "structural." They further agree that a reviewing court finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in determining the jury’s verdict." Brecht v. Abrahamson, 507 U. S. 619, 623 (1993) (internal quotation marks omitted). We agree as well and so hold.

Thus, a remand for the Ninth Circuit to conduct harmless error review.

Justice Stevens dissented, joined by Justices Souter and Ginsburg. They argued that the decision below should be affirmed because the Ninth Circuit in fact conducted harmless error review, notwithstanding that court's misuse of the term "structural error."

Additional analysis is available at SCOTUSblog and the Volokh Conspiracy.