Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, March 27, 1991                   TAG: 9103270067
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-1   EDITION: STATE 
SOURCE: The New York Times
DATELINE: WASHINGTON                                LENGTH: Medium

RULING SHIFTS RULE FOR TRIALS/ ILLEGAL CONFESSION DOES NOT ALWAYS BAR

The 5-to-4 decision significantly undercut a 1967 ruling by the high court that the use of a coerced or involuntary confession must always result in a reversal of the conviction.

While there is no way to measure the eventual impact on specific cases, the symbolic effect of Tuesday's ruling was immediately apparent. The court retreated from a long-held view that coerced confessions are almost in a class by themselves as a form of government misconduct.

And the decision underscored the turn the court may have taken, at least in the area of criminal law, since the retirement last summer of Justice William Brennan.

Tuesday's ruling, in a murder case from Arizona, was the first in which the court would almost certainly have reached the opposite result if Brennan had not been replaced by Justice David Souter.

Souter provided a fifth vote for Chief Justice William Rehnquist's conclusion that the admission of a coerced or involuntary confession can be excused as "harmless error" if it can be shown that other evidence, obtained independently of the confession, was adequate to sustain a guilty verdict. Under this standard, the use of the tainted confession must be "harmless beyond a reasonable doubt."

Justices Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy also joined the chief justice in this part of the ruling.

Justice Byron White took the highly unusual step of reading from the bench a bitter dissenting opinion. He said the majority had overruled a "vast body of precedent" and dislodged "one of the fundamental tenets of our criminal justice system." Justices Thurgood Marshall, Harry Blackmun and John Paul Stevens joined White's dissent.

Rehnquist said a "harmless error" approach to the use of a coerced confession was appropriate because the introduction of a tainted confession was simply a "trial error" that can be "quantitatively assessed in the context of other evidence presented."

He said this type of error differed from more serious errors, such as a "total deprivation of the right to counsel at trial" or the presence of a biased judge.

These are "structural defects" in a trial, the chief justice said, that can never be balanced against other factors and therefore can never be "harmless."

The 1967 precedent, Chapman vs. California, had identified all three errors - coerced confessions, absence of counsel and a biased judge - as automatically invalidating a conviction and as never being subject to harmless-error analysis.

Under other Supreme Court precedents, a variety of trial errors, such as improper instructions to the jury and mistaken exclusion of certain testimony, can be regarded as harmless if they can be shown not to have affected the outcome.

In his dissent, White said coerced confessions were different in kind from any of the errors that the court had previously considered as occasionally harmless.

"Permitting a coerced confession to be part of the evidence on which a jury is free to base its verdict of guilty is inconsistent with the thesis that ours is not an inquisitorial system of criminal justice," he said.