US SUPREME COURT DECISIONS

During voir dire prior to the trial in a California court of respondent and others on various charges, including murder and conspiracy allegedly involving the Black Panther Party, a prospective juror (who became a juror) stated that she had no personal knowledge of violent crimes, and that she did not associate the Black Panther Party with any form of violence. However, evidence was introduced at the trial concerning an unrelated murder by a Black Panther, triggering the juror's recollection that the victim of the unrelated murder had been the juror's childhood friend and causing her to go twice to the judge's chambers to tell him of her personal acquaintance with the victim. On each occasion, she assured the judge -- who made no record of the conversations and did not inform the defendants or their counsel about them -- that her disposition of the case would not be affected. After respondent was convicted, his counsel learned of the ex parte communications between the judge and the juror and moved for a new trial. After a hearing at which the juror testified that her recollection of her friend's death did not affect her impartiality, the judge denied the motion, concluding that the communications lacked significance, and that respondent suffered no prejudice therefrom. The California Court of Appeal affirmed, holding that, although the communications constituted federal constitutional error, they were harmless "beyond a reasonable doubt." However, respondent subsequently obtained habeas corpus relief in the Federal District Court, which held, inter alia, that the ex parte communications violated respondent's constitutional rights to be present during critical stages of the proceedings and to be represented by counsel, and that automatic reversal was necessary because the absence of a contemporaneous record made intelligent application of the harmless error standard impossible. The Court of Appeals affirmed on the basis that an unrecorded ex parte communication between trial judge and juror could never be harmless error.

Held: The lower federal courts' conclusion that unrecorded ex parte communications between trial judge and juror can never be harmless error ignores the day-to-day realities of courtroom life and undermines society's interest in the administration of criminal justice. When an ex chanrobles.com-red

Page 464 U. S. 115

parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties, but the prejudicial effect of a failure to do so can normally be determined by a post-trial hearing. The substance of the communication and its effect on juror impartiality are questions of historical fact, and, under 28 U.S.C. § 2254(d), the state courts' findings thereon are entitled to a presumption of correctness, and must be deferred to by the federal courts in the absence of "convincing evidence" to the contrary. The post-trial hearing in this case created more than adequate support for the finding that the juror's presence on the jury did not prejudice respondent. The lower federal courts should have deferred to this presumptively correct state court finding, and therefore should have found the alleged constitutional error harmless beyond a reasonable doubt.

Certiorari granted; 701 F.2d 186, vacated and remanded.