I make what seems a harmless enough inquiry about Lucas and he fires back that, should I report any details in this article, "I would caution you from a legal perspective right now... that you run the risk of being on the end of a lawsuit".
Simply because constitutional errors may be subject to a harmless-error inquiry does not mean that all nonconstitutional errors must be subject to harmless-error analysis, and this Court has never so held.
To be sure, the harmless-error inquiry will not always bear on reliability.
We should not, however, rewrite existing law by adopting a presumption that, simply because a violation is nonconstitutional, it is automatically subject to harmless-error inquiry.
We can agree with Justice STEVENS' partial dissent "that the harmless-error inquiry is entirely distinct from a sufficiency-of-the-evidence inquiry". Post, at 476; our reliance on the Kotteakos test makes that clear.
But the Court does not explain how those costs set the harmless-error inquiry apart from any other question presented on habeas; such costs are inevitable whenever relief is awarded.
It, too, concluded that the State's references to petitioner's post-Miranda silence violated Doyle, but it disagreed with both the standard that the District Court had applied in conducting its harmless-error inquiry and the result it reached.
I write separately, however, because my reasons for reaching this conclusion differ from the Court's, and because I agree with Justice STEVENS that the harmless-error inquiry should be made in the first instance by the Court of Appeals.
For that reason, a decision that a harmless-error inquiry is required should lead to a remand to the Court of Appeals, which is in a far better position than we are to study the complete trial record with care.
In other words, subject to the exceptions discussed in Part II (most importantly the exception for constitutional errors), I read § 2111 and Rule 52(a) to require harmless-error inquiry for all procedural errors.
Having concluded that a harmless-error inquiry is required, I, like Justice STEVENS, think we should remand to the Court of Appeals, which is in a better position than we are to study the complete trial record with care.
