Weaver v. Massachusetts
582 U.S. 286
Decision date: 2017-06-22
286
OCTOBER TERM, 2016
Syllabus
WEAVER v. MASSACHUSETTS
certiorari to the supreme judicial court of massachusetts
No. 16–240. Argued April 19, 2017—Decided June 22, 2017
When petitioner was tried in a Massachusetts trial court, the courtroom could not accommodate all the potential jurors. As a result, for two days of jury selection, an offcer of the court excluded from the court- room any member of the public who was not a potential juror, including petitioner's mother and her minister. Defense counsel neither objected to the closure at trial nor raised the issue on direct review. Petitioner was convicted of murder and a related charge. Five years later, he fled a motion for a new trial in state court, arguing, as relevant here, that his attorney had provided ineffective assistance by failing to object to the courtroom closure. The trial court ruled that he was not entitled to relief. The Massachusetts Supreme Judicial Court affrmed in rele- vant part. Although it recognized that the violation of the right to public trial was a structural error, it rejected petitioner's ineffective- assistance claim because he had not shown prejudice.
Held:
1. In the context of a public-trial violation during jury selection, where the error is neither preserved nor raised on direct review but is raised later via an ineffective-assistance-of-counsel claim, the defendant must demonstrate prejudice to secure a new trial. Pp. 294–303.
(a) This case requires an examination of the proper application of the doctrines of structural error and ineffective assistance of counsel. They are intertwined, because the reasons an error is deemed structural may infuence the proper standard used to evaluate an ineffective- assistance claim premised on the failure to object to that error. Pp. 294–299.
(1) Generally, a constitutional error that “did not contribute to the verdict obtained” is deemed harmless, which means the defendant is not entitled to reversal. Chapman v. California, 386 U. S. 18, 24. However, a structural error, which “affect[s] the framework within which the trial proceeds,” Arizona v. Fulminante, 499 U. S. 279, 310, defes harmless-error analysis, id., at 309. Thus, when a structural error is objected to and then raised on direct review, the defendant is entitled to relief without any inquiry into harm.
There appear to be at least three broad rationales for fnding an error to be structural. One is when the right at issue does not protect the
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defendant from erroneous conviction but instead protects some other interest—like the defendant's right to conduct his own defense—where harm is irrelevant to the basis underlying the right. See United States v. Gonzalez-Lopez, 548 U. S. 140, 149, n. 4. Another is when the error's effects are simply too hard to measure—e. g., when a defendant is denied the right to select his or her own attorney—making it almost impossible for the government to show that the error was “harmless beyond a reasonable doubt,” Chapman, supra, at 24. Finally, some errors al- ways result in fundamental unfairness, e. g., when an indigent defendant is denied an attorney, see Gideon v. Wainwright, 372 U. S. 335, 343–345. For purposes of this case, a critical point is that an error can count as structural even if it does not lead to fundamental unfairness in every case. See Gonzalez-Lopez, supra, at 149, n. 4. Pp. 294–296.
(2) While a public-trial violation counts as structural error, it does not always lead to fundamental unfairness. This Court's opinions teach that courtroom closure is to be avoided, but that there are some circumstances when it is justifed. See Waller v. Georgia, 467 U. S. 39; Presley v. Georgia, 558 U. S. 209, 215–216. The fact that the public- trial right is subject to exceptions suggests that not every public-trial violation results in fundamental unfairness. Indeed, the Court has said that a public-trial violation is structural because of the “diffculty of assessing the effect of the error.” Gonzalez-Lopez, supra, at 149, n. 4. The public-trial right also furthers interests other than protecting the defendant against unjust conviction, including the rights of the press and of the public at large. See, e. g., Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U. S. 501, 508–510. Thus, an unlawful closure could take place and yet the trial will still be fundamentally fair from the defendant's standpoint. Pp. 296–299.
(b) The proper remedy for addressing the violation of the right to a public trial depends on when the objection was raised. If an objection is made at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error's actual “effect on the outcome.” Neder v. United States, 527 U. S. 1, 7. If, however, the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance claim, the defendant generally bears the burden to show defcient per- formance and that the attorney's error “pre judiced the defense. ” Strickland v. Washington, 466 U. S. 668, 687. To demonstrate preju- dice in most cases, the defendant must show “a reasonable probability that . . . the result of the proceeding would have been different” but for attorney error. Id., at 694. For the analytical purposes of this case, the Court will assume, as petitioner has requested, that even if there is no showing of a reasonable probability of a different outcome, relief still
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must be granted if the defendant shows that attorney errors rendered the trial fundamentally unfair.
Not every public-trial violation will lead to a fundamentally unfair trial. And the failure to object to that violation does not always de- prive the defendant of a reasonable probability of a different outcome. Thus, a defendant raising a public-trial violation via an ineffective- assistance claim must show either a reasonable probability of a different outcome in his or her case or, as assumed here, that the particular viola- tion was so serious as to render the trial fundamentally unfair.
Neither this reasoning nor the holding here calls into question the Court's precedents deeming certain errors structural and requiring re- versal because of fundamental unfairness, see Sullivan v. Louisiana, 508 U. S. 275, 278–279; Tumey v. Ohio, 273 U. S. 510, 535; Vasquez v. Hillery, 474 U. S. 254, 261–264, or those granting automatic relief to defendants who prevailed on claims of race or gender discrimination in jury selection, e. g., Batson v. Kentucky, 476 U. S. 79, 100. The errors in each of these cases were preserved and then raised on direct appeal. The reason for placing the burden on the petitioner here, however, de- rives both from the nature of the error and the difference between a public-trial violation preserved and then raised on direct review and a public-trial violation raised as an ineffective-assistance claim.
When a defendant objects to a courtroom closure, the trial court can either order the courtroom opened or explain the reasons for keeping it closed, but when a defendant frst raises the closure in an ineffective- assistance claim, the trial court has no chance to cure the violation. The costs and uncertainties of a new trial are also greater because more time will have elapsed in most cases. And the fnality interest is more at risk. See Strickland, supra, at 693–694. These differences justify a different standard for evaluating a structural error depending on whether it is raised on direct review or in an ineffective-assistance claim. Pp. 299–303.
2. Because petitioner has not shown a reasonable probability of a dif- ferent outcome but for counsel's failure to object or that counsel's short- comings led to a fundamentally unfair trial, he is not entitled to a new trial. Although potential jurors might have behaved differently had petitioner's family or the public been present, petitioner has offered no evidence suggesting a reasonable probability of a different outcome but for counsel's failure to object. He has also failed to demonstrate funda- mental unfairness. His mother and her minister were indeed excluded during jury selection. But his trial was not conducted in secret or in a remote place; closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court offcers, not the judge; venire
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members who did not become jurors observed the proceedings; and the record of the proceedings indicates no basis for concern, other than the closure itself. There was no showing, furthermore, that the potential harms fowing from a courtroom closure came to pass in this case, e. g., misbehavior by the prosecutor, judge, or any other party. Thus, even though this case comes here on the assumption that the closure was a Sixth Amendment violation, the violation here did not pervade the whole trial or lead to basic unfairness. Pp. 303–305.
474 Mass. 787, 54 N. E. 3d 495, affrmed.
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Sotomayor, and Gorsuch, JJ., joined. Thomas, J., fled a concurring opinion, in which Gorsuch, J., joined, post, p. 305. Alito, J., fled an opinion concurring in the judgment, in which Gorsuch, J., joined, post, p. 306. Breyer, J., fled a dissenting opinion, in which Kagan, J., joined, post, p. 309.
Michael B. Kimberly argued the cause for petitioner. With him on the briefs were Charles A. Rothfeld, Andrew J. Pincus, Paul W. Hughes, Ruth Greenberg, and Eugene R. Fidell.
Randall E. Ravitz, Assistant Attorney General of Massa- chusetts, argued the cause for respondent. With him on the brief were Maura Healey, Attorney General, Elizabeth N. Dewar, State Solicitor, Thomas E. Bocian, Assistant Attor- ney General, and John P. Zanini, Special Assistant Attor- ney General.
Ann O'Connell argued the cause for the United States as amicus curiae urging affrmance. With her on the brief were Acting Solicitor General Wall, Acting Assistant Attor- ney General Blanco, Deputy Solicitor General Dreeben, and David M. Lieberman.*
*Briefs of amici curiae urging reversal were fled for the American Civil Liberties Union et al. by Brian W. Stull, Cassandra Stubbs, Anna Arceneaux, David D. Cole, Matthew R. Segal, and Sarah R. Wunsch; for the Massachusetts Association of Criminal Defense Lawyers by Kirsten Mayer; for the National Association of Criminal Defense Lawyers by Stu- art Banner and David M. Porter; for the Reporters Committee for Free- dom of the Press et al. by Bruce D. Brown, Gregg P. Leslie, and Bruce
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Opinion of the Court
Justice Kennedy delivered the opinion of the Court. During petitioner's trial on state criminal charges, the courtroom was occupied by potential jurors and closed to the public for two days of the jury selection process. Defense counsel neither objected to the closure at trial nor raised the issue on direct review. And the case comes to the Court on the assumption that, in failing to object, defense counsel provided ineffective assistance.
In the direct review context, the underlying constitutional violation—the courtroom closure—has been treated by this Court as a structural error, i. e., an error entitling the de- fendant to automatic reversal without any inquiry into preju- dice. The question is whether invalidation of the conviction is required here as well, or if the prejudice inquiry is altered when the structural error is raised in the context of an ineffective-assistance-of-counsel claim.
W. Sanford; and for the Stein Center for Law and Ethics et al. by Law- rence J. Fox.
Briefs of amici curiae urging affrmance were fled for the State of Arkansas et al. by Leslie Rutledge, Attorney General of Arkansas, Lee Rudofsky, Solicitor General, and Nicholas J. Bronni, Deputy Solicitor General, and by the Attorneys General for their respective States as fol- lows: Steven T. Marshall of Alabama, Mark Brnovich of Arizona, Cynthia H. Coffman of Colorado, Kevin T. Kane of Connecticut, Matthew P. Denn of Delaware, Pamela Jo Bondi of Florida, Christopher M. Carr of Georgia, Douglas S. Chin of Hawaii, Lawrence G. Wasden of Idaho, Curtis T. Hill, Jr., of Indiana, Derek Schmidt of Kansas, Andy Beshear of Kentucky, Jeff Landry of Louisiana, Janet T. Mills of Maine, Brian E. Frosh of Maryland, Bill Schuette of Michigan, Jim Hood of Mississippi, Joshua D. Hawley of Missouri, Timothy C. Fox of Montana, Douglas J. Peterson of Nebraska, Adam Paul Laxalt of Nevada, Hector H. Balderas of New Mexico, Josh Stein of North Carolina, Wayne Stenehjem of North Dakota, Michael De- Wine of Ohio, Mike Hunter of Oklahoma, Josh Shapiro of Pennsylvania, Peter F. Kilmartin of Rhode Island, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Herbert H. Slatery III of Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah, Robert W. Ferguson of Washington, Patrick Morrisey of West Virginia, Brad D. Schimel of Wis- consin, and Peter K. Michael of Wyoming; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Kymberlee C. Stapleton.
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I
In 2003, a 15-year-old boy was shot and killed in Boston. A witness saw a young man feeing the scene of the crime and saw him pull out a pistol. A baseball hat fell off of his head. The police recovered the hat, which featured a dis- tinctive airbrushed Detroit Tigers logo on either side. The hat's distinctive markings linked it to 16-year-old Kentel Weaver. He is the petitioner here. DNA obtained from the hat matched petitioner's DNA.
Two weeks after the crime, the police went to petitioner's house to question him. He admitted losing his hat around the time of the shooting but denied being involved. Peti- tioner's mother was not so sure. Later, she questioned peti- tioner herself. She asked whether he had been at the scene of the shooting, and he said he had been there. But when she asked if he was the shooter, or if he knew who the shooter was, petitioner put his head down and said nothing. Believing his response to be an admission of guilt, she insisted that petitioner go to the police station to confess. He did. Petitioner was indicted in Massachusetts state court for frst-degree murder and the unlicensed possession of a handgun. He pleaded not guilty and proceeded to trial.
The pool of potential jury members was large, some 60 to 100 people. The assigned courtroom could accommodate only 50 or 60 in the courtroom seating. As a result, the trial judge brought all potential jurors into the courtroom so that he could introduce the case and ask certain preliminary ques- tions of the entire venire panel. Many of the potential ju- rors did not have seats and had to stand in the courtroom. After the preliminary questions, the potential jurors who had been standing were moved outside the courtroom to wait during the individual questioning of the other potential ju- rors. The judge acknowledged that the hallway was not “the most comfortable place to wait” and thanked the poten- tial jurors for their patience. 2 Tr. II–103 (Apr. 10, 2006).
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The judge noted that there was simply not space in the courtroom for everybody.
As all of the seats in the courtroom were occupied by the venire panel, an offcer of the court excluded from the court- room any member of the public who was not a potential juror. So when petitioner's mother and her minister came to the courtroom to observe the two days of jury selection, they were turned away.
All this occurred before the Court's decision in Presley v. Georgia, 558 U. S. 209 (2010) (per curiam). Presley made it clear that the public-trial right extends to jury selection as well as to other portions of the trial. Id., at 213–215. Be- fore Presley, Massachusetts courts would often close court- rooms to the public during jury selection, in particular dur- ing murder trials.
In this case petitioner's mother told defense counsel about the closure at some point during jury selection. But counsel “believed that a courtroom closure for [jury selection] was constitutional.” Crim. No. 2003–11293 (Super. Ct. Mass., Feb. 22, 2013), App. to Pet. for Cert. 49a. As a result, he “did not discuss the matter” with petitioner, or tell him “that his right to a public trial included the [jury voir dire],” or object to the closure. Ibid.
During the ensuing trial, the government presented strong evidence of petitioner's guilt. Its case consisted of the incriminating details outlined above, including petition- er's confession to the police. The jury convicted petitioner on both counts. The court sentenced him to life in prison on the murder charge and to about a year in prison on the gun-possession charge.
Five years later, petitioner fled a motion for a new trial in Massachusetts state court. As relevant here, he argued that his attorney had provided ineffective assistance by fail- ing to object to the courtroom closure. After an evidentiary hearing, the trial court recognized a violation of the right to
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a public trial based on the following fndings: The courtroom had been closed; the closure was neither de minimis nor triv- ial; the closure was unjustifed; and the closure was full rather than partial (meaning that all members of the public, rather than only some of them, had been excluded from the courtroom). The trial court further determined that de- fense counsel failed to object because of “serious incompe- tency, ineffciency, or inattention.” Id., at 63a (quoting Mas- sachusetts v. Chleikh, 82 Mass. App. 718, 722, 978 N. E. 2d 96, 100 (2012)). On the other hand, petitioner had not “of- fered any evidence or legal argument establishing preju- dice.” App. to Pet. for Cert. 64a. For that reason, the court held that petitioner was not entitled to relief.
Petitioner appealed the denial of the motion for a new trial to the Massachusetts Supreme Judicial Court. The court consolidated that appeal with petitioner's direct appeal. As noted, there had been no objection to the closure at trial; and the issue was not raised in the direct appeal. The Supreme Judicial Court then affrmed in relevant part. Although it recognized that “[a] violation of the Sixth Amendment right to a public trial constitutes structural error,” the court stated that petitioner had “failed to show that trial counsel's conduct caused prejudice warranting a new trial.” 474 Mass. 787, 814, 54 N. E. 3d 495, 520 (2016). On this reason- ing, the court rejected petitioner's claim of ineffective assist- ance of counsel.
There is disagreement among the Federal Courts of Ap- peals and some state courts of last resort about whether a defendant must demonstrate prejudice in a case like this one—in which a structural error is neither preserved nor raised on direct review but is raised later via a claim alleging ineffective assistance of counsel. Some courts have held that, when a defendant shows that his attorney unreasonably failed to object to a structural error, the defendant is entitled to a new trial without further inquiry. See, e. g., Johnson v.
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Sherry, 586 F. 3d 439, 447 (CA6 2009); Owens v. United States, 483 F. 3d 48, 64–65 (CA1 2007); Littlejohn v. United States, 73 A. 3d 1034, 1043–1044 (D. C. 2013); State v. Lamere, 327 Mont. 115, 125, 112 P. 3d 1005, 1013 (2005). Other courts have held that the defendant is entitled to relief only if he or she can show prejudice. See, e. g., Purvis v. Crosby, 451 F. 3d 734, 738 (CA11 2006); United States v. Gomez, 705 F. 3d 68, 79–80 (CA2 2013); Reid v. State, 286 Ga. 484, 487, 690 S. E. 2d 177, 180–181 (2010). This Court granted certiorari to resolve that disagreement. 580 U. S. 1088 (2017). The Court does so specifcally and only in the context of trial counsel's failure to object to the closure of the courtroom during jury selection.
II
This case requires a discussion, and the proper application, of two doctrines: structural error and ineffective assistance of counsel. The two doctrines are intertwined; for the rea- sons an error is deemed structural may infuence the proper standard used to evaluate an ineffective-assistance claim premised on the failure to object to that error.
A
The concept of structural error can be discussed frst. In Chapman v. California, 386 U. S. 18 (1967), this Court “adopted the general rule that a constitutional error does not automatically require reversal of a conviction.” Arizona v. Fulminante, 499 U. S. 279, 306 (1991) (citing Chapman, supra). If the government can show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” the Court held, then the error is deemed harmless and the defendant is not entitled to reversal. Id., at 24.
The Court recognized, however, that some errors should not be deemed harmless beyond a reasonable doubt. Id., at 23, n. 8. These errors came to be known as structural er- rors. See Fulminante, 499 U. S., at 309–310. The purpose
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of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should defne the framework of any criminal trial. Thus, the defning fea- ture of a structural error is that it “affect[s] the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” Id., at 310. For the same reason, a structural error “def[ies] analysis by harm- less error standards.” Id., at 309 (internal quotation marks omitted).
The precise reason why a particular error is not amenable to that kind of analysis—and thus the precise reason why the Court has deemed it structural—varies in a signifcant way from error to error. There appear to be at least three broad rationales.
First, an error has been deemed structural in some in- stances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. This is true of the defendant's right to conduct his own defense, which, when exercised, “usually increases the likelihood of a trial outcome unfavorable to the defendant.” McKaskle v. Wiggins, 465 U. S. 168, 177, n. 8 (1984). That right is based on the fundamental legal princi- ple that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. See Fa- retta v. California, 422 U. S. 806, 834 (1975). Because harm is irrelevant to the basis underlying the right, the Court has deemed a violation of that right structural error. See United States v. Gonzalez-Lopez, 548 U. S. 140, 149, n. 4 (2006).
Second, an error has been deemed structural if the effects of the error are simply too hard to measure. For example, when a defendant is denied the right to select his or her own attorney, the precise “effect of the violation cannot be ascertained.” Ibid. (quoting Vasquez v. Hillery, 474 U. S. 254, 263 (1986)). Because the government will, as a result, fnd it almost impossible to show that the error was “harm-
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less beyond a reasonable doubt,” Chapman, supra, at 24, the effciency costs of letting the government try to make the showing are unjustifed.
Third, an error has been deemed structural if the error always results in fundamental unfairness. For example, if an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one. See Gideon v. Wainwright, 372 U. S. 335, 343–345 (1963) (right to an attor- ney); Sullivan v. Louisiana, 508 U. S. 275, 279 (1993) (right to a reasonable-doubt instruction). It therefore would be futile for the government to try to show harmlessness.
These categories are not rigid. In a particular case, more than one of these rationales may be part of the explanation for why an error is deemed to be structural. See e. g., id., at 280–282. For these purposes, however, one point is criti- cal: An error can count as structural even if the error does not lead to fundamental unfairness in every case. See Gonzalez-Lopez, supra, at 149, n. 4 (rejecting as “inconsist- ent with the reasoning of our precedents” the idea that struc- tural errors “always or necessarily render a trial fundamen- tally unfair and unreliable” (emphasis deleted)).
B
As noted above, a violation of the right to a public trial is a structural error. See supra, at 290, 293. It is relevant to determine why that is so. In particular, the question is whether a public-trial violation counts as structural because it always leads to fundamental unfairness or for some other reason.
In Waller v. Georgia, 467 U. S. 39 (1984), the state court prohibited the public from viewing a weeklong suppression hearing out of concern for the privacy of persons other than those on trial. See id., at 41–43. Although it recognized that there would be instances where closure was justifed, this Court noted that “such circumstances will be rare” and
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that the closure in question was unjustifed. Id., at 45, 48. Still, the Court did not order a new trial. Id., at 49–50. In- stead it ordered a new suppression hearing that was open to the public. Id., at 50. If the same evidence was found admissible in that renewed pretrial proceeding, the Court held, no new trial as to guilt would be necessary. Ibid. This was despite the structural aspect of the violation.
Some 25 years after the Waller decision, the Court issued its per curiam ruling in Presley v. Georgia. 558 U. S. 209. In that case, as here, the courtroom was closed to the public during jury voir dire. Id., at 210. Unlike here, however, there was a trial objection to the closure, and the issue was raised on direct appeal. Id., at 210–211. On review of the State Supreme Court's decision allowing the closure, this Court expressed concern that the state court's reasoning would allow the courtroom to be closed during jury selection “whenever the trial judge decides, for whatever reason, that he or she would prefer to fll the courtroom with potential jurors rather than spectators.” Id., at 215 (internal quota- tion marks omitted). Although the Court expressly noted that courtroom closure may be ordered in some circum- stances, the Court also stated that it was “still incumbent upon” the trial court “to consider all reasonable alternatives to closure.” Id., at 215–216.
These opinions teach that courtroom closure is to be avoided, but that there are some circumstances when it is justifed. The problems that may be encountered by trial courts in deciding whether some closures are necessary, or even in deciding which members of the public should be ad- mitted when seats are scarce, are diffcult ones. For exam- ple, there are often preliminary instructions that a judge may want to give to the venire as a whole, rather than re- peating those instructions (perhaps with unintentional dif- ferences) to several groups of potential jurors. On the other hand, various constituencies of the public—the family of the accused, the family of the victim, members of the press, and
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other persons—all have their own interests in observing the selection of jurors. How best to manage these problems is not a topic discussed at length in any decision or commentary the Court has found.
So although the public-trial right is structural, it is subject to exceptions. See Simonson, The Criminal Court Audience in a Post-Trial World, 127 Harv. L. Rev. 2173, 2219–2222 (2014) (discussing situations in which a trial court may order a courtroom closure). Though these cases should be rare, a judge may deprive a defendant of his right to an open court- room by making proper factual fndings in support of the decision to do so. See Waller, supra, at 45. The fact that the public-trial right is subject to these exceptions suggests that not every public-trial violation results in fundamental unfairness.
A public-trial violation can occur, moreover, as it did in Presley, simply because the trial court omits to make the proper fndings before closing the courtroom, even if those fndings might have been fully supported by the evidence. See 558 U. S., at 215. It would be unconvincing to deem a trial fundamentally unfair just because a judge omitted to announce factual fndings before making an otherwise valid decision to order the courtroom temporarily closed. As a result, it would be likewise unconvincing if the Court had said that a public-trial violation always leads to a fundamen- tally unfair trial.
Indeed, the Court has not said that a public-trial violation renders a trial fundamentally unfair in every case. In the two cases in which the Court has discussed the reasons for classifying a public-trial violation as structural error, the Court has said that a public-trial violation is structural for a different reason: because of the “diffculty of assessing the effect of the error.” Gonzalez-Lopez, 548 U. S., at 149, n. 4; see also Waller, supra, at 49, n. 9.
The public-trial right also protects some interests that do not belong to the defendant. After all, the right to an open
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courtroom protects the rights of the public at large, and the press, as well as the rights of the accused. See, e. g., Press- Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U. S. 501, 508–510 (1984); Richmond Newspapers, Inc. v. Vir- ginia, 448 U. S. 555, 572–573 (1980). So one other factor leading to the classifcation of structural error is that the public-trial right furthers interests other than protecting the defendant against unjust conviction. These precepts con- frm the conclusion the Court now reaches that, while the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant's standpoint.
III
The Court now turns to the proper remedy for addressing the violation of a structural right, and in particular the right to a public trial. Despite its name, the term “structural error” carries with it no talismanic signifcance as a doctrinal matter. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.” Chap- man, 386 U. S., at 24. Thus, in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to “auto- matic reversal” regardless of the error's actual “effect on the outcome.” Neder v. United States, 527 U. S. 1, 7 (1999).
The question then becomes what showing is necessary when the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance-of-counsel claim. To obtain relief on the basis of ineffective assistance of counsel, the defendant as a general rule bears the burden to meet two standards. First, the defendant must show defcient performance—that the attorney's error was “so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the
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Sixth Amendment.” Strickland v. Washington, 466 U. S. 668, 687 (1984). Second, the defendant must show that the attorney's error “prejudiced the defense.” Ibid.
The prejudice showing is in most cases a necessary part of a Strickland claim. The reason is that a defendant has a right to effective representation, not a right to an attorney who performs his duties “mistake-free.” Gonzalez-Lopez, 548 U. S., at 147. As a rule, therefore, a “violation of the Sixth Amendment right to effective representation is not `complete' until the defendant is prejudiced.” Ibid. (empha- sis deleted); see also Premo v. Moore, 562 U. S. 115, 128 (2011); Lockhart v. Fretwell, 506 U. S. 364, 370 (1993).
That said, the concept of prejudice is defned in different ways depending on the context in which it appears. In the ordinary Strickland case, prejudice means “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U. S., at 694. But the Strickland Court cautioned that the prejudice inquiry is not meant to be applied in a “mechani- cal” fashion. Id., at 696. For when a court is evaluating an ineffective-assistance claim, the ultimate inquiry must con- centrate on “the fundamental fairness of the proceeding.” Ibid. Petitioner therefore argues that under a proper inter- pretation of Strickland, even if there is no showing of a rea- sonable probability of a different outcome, relief still must be granted if the convicted person shows that attorney errors rendered the trial fundamentally unfair. For the analytical purposes of this case, the Court will assume that petitioner's interpretation of Strickland is the correct one. In light of the Court's ultimate holding, however, the Court need not decide that question here.
As explained above, not every public-trial violation will in fact lead to a fundamentally unfair trial. See supra, at 299. Nor can it be said that the failure to object to a public-trial violation always deprives the defendant of a reasonable probability of a different outcome. Thus, when a defendant
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raises a public-trial violation via an ineffective-assistance- of-counsel claim, Strickland prejudice is not shown automati- cally. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes, see supra, at 300, to show that the particular public-trial violation was so serious as to render his or her trial funda- mentally unfair.
Neither the reasoning nor the holding here calls into ques- tion the Court's precedents determining that certain errors are deemed structural and require reversal because they cause fundamental unfairness, either to the defendant in the specifc case or by pervasive undermining of the systemic requirements of a fair and open judicial process. See Mur- ray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791, 1813, 1822 (2017) (noting that the “eclectic normative objectives of criminal procedure” go beyond pro- tecting a defendant from erroneous conviction and include ensuring “ `that the administration of justice should reason- ably appear to be disinterested' ” (quoting Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847, 869–870 (1988))). Those precedents include Sullivan v. Louisiana, 508 U. S., at 278–279 (failure to give a reasonable-doubt instruction); Tumey v. Ohio, 273 U. S. 510, 535 (1927) (biased judge); and Vasquez v. Hillery, 474 U. S., at 261–264 (exclusion of grand jurors on the basis of race). See Neder, supra, at 8 (describ- ing each of these errors as structural). This Court, in addi- tion, has granted automatic relief to defendants who pre- vailed on claims alleging race or gender discrimination in the selection of the petit jury, see Batson v. Kentucky, 476 U. S. 79, 100 (1986); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 145–146 (1994), though the Court has yet to label those er- rors structural in express terms, see, e. g., Neder, supra, at 8. The errors in those cases necessitated automatic re- versal after they were preserved and then raised on direct appeal. And this opinion does not address whether the re-
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sult should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review.
The reason for placing the burden on the petitioner in this case, however, derives both from the nature of the error, see supra, at 300–301, and the difference between a public-trial violation preserved and then raised on direct review and a public-trial violation raised as an ineffective-assistance-of- counsel claim. As explained above, when a defendant ob- jects to a courtroom closure, the trial court can either order the courtroom opened or explain the reasons for keeping it closed. See supra, at 297–298. When a defendant frst raises the closure in an ineffective-assistance claim, however, the trial court is deprived of the chance to cure the violation either by opening the courtroom or by explaining the reasons for closure.
Furthermore, when state or federal courts adjudicate er- rors objected to during trial and then raised on direct review, the systemic costs of remedying the error are diminished to some extent. That is because, if a new trial is ordered on direct review, there may be a reasonable chance that not too much time will have elapsed for witness memories still to be accurate and physical evidence not to be lost. There are also advantages of direct judicial supervision. Reviewing courts, in the regular course of the appellate process, can give instruction to the trial courts in a familiar context that allows for elaboration of the relevant principles based on re- view of an adequate record. For instance, in this case, the factors and circumstances that might justify a temporary clo- sure are best considered in the regular appellate process and not in the context of a later proceeding, with its added time delays.
When an ineffective-assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties of a new trial are greater because more time will have elapsed in most cases. The fnality interest is more at risk, see Strick- land, 466 U. S., at 693–694 (noting the “profound importance
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of fnality in criminal proceedings”), and direct review often has given at least one opportunity for an appellate review of trial proceedings. These differences justify a different standard for evaluating a structural error depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel.
In sum, “[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial,” thus undermining the fnality of jury verdicts. Harrington v. Richter, 562 U. S. 86, 105 (2011). For this reason, the rules governing ineffective-assistance claims “must be applied with scrupulous care.” Premo, 562 U. S., at 122.
IV
The fnal inquiry concerns the ineffective-assistance claim in this case. Although the case comes on the assumption that petitioner has shown defcient performance by counsel, he has not shown prejudice in the ordinary sense, i. e., a rea- sonable probability that the jury would not have convicted him if his attorney had objected to the closure.
It is of course possible that potential jurors might have behaved differently if petitioner's family had been present. And it is true that the presence of the public might have had some bearing on juror reaction. But here petitioner offered no “evidence or legal argument establishing prejudice” in the sense of a reasonable probability of a different outcome but for counsel's failure to object. App. to Pet. for Cert. 64a; see Strickland, 466 U. S., at 694.
In other circumstances a different result might obtain. If, for instance, defense counsel errs in failing to object when the government's main witness testifes in secret, then the defendant might be able to show prejudice with little more detail. See ibid. Even in those circumstances, however, the burden would remain on the defendant to make the prej- udice showing, id., at 694, 696, because a public-trial violation
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does not always lead to a fundamentally unfair trial, see supra, at 299.
In light of the above assumption that prejudice can be shown by a demonstration of fundamental unfairness, see supra, at 304, the remaining question is whether petitioner has shown that counsel's failure to object rendered the trial fundamentally unfair. See Strickland, supra, at 696. The Court concludes that petitioner has not made the showing. Although petitioner's mother and her minister were indeed excluded from the courtroom for two days during jury selec- tion, petitioner's trial was not conducted in secret or in a remote place. Cf. In re Oliver, 333 U. S. 257, 269, n. 22 (1948). The closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court offcers rather than the judge; there were many members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceed- ings that does not indicate any basis for concern, other than the closure itself.
There has been no showing, furthermore, that the poten- tial harms fowing from a courtroom closure came to pass in this case. For example, there is no suggestion that any juror lied during voir dire; no suggestion of misbehavior by the prosecutor, judge, or any other party; and no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands. It is true that this case comes here on the assumption that the closure was a Sixth Amendment violation. And it must be recognized that open trials ensure respect for the justice system and allow the press and the public to judge the pro- ceedings that occur in our Nation's courts. Even so, the vio- lation here did not pervade the whole trial or lead to basic unfairness.
In sum, petitioner has not shown a reasonable probability of a different outcome but for counsel's failure to object, and
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he has not shown that counsel's shortcomings led to a funda- mentally unfair trial. He is not entitled to a new trial.
*
*
*
In the criminal justice system, the constant, indeed unend- ing, duty of the judiciary is to seek and to fnd the proper balance between the necessity for fair and just trials and the importance of fnality of judgments. When a structural error is preserved and raised on direct review, the balance is in the defendant's favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective-assistance claim, how- ever, fnality concerns are far more pronounced. For this reason, and in light of the other circumstances present in this case, petitioner must show prejudice in order to obtain a new trial. As explained above, he has not made the required showing. The judgment of the Massachusetts Supreme Ju- dicial Court is affrmed.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins,
concurring.
I write separately with two observations about the scope of the Court's holding. First, this case comes to us on the parties' “assumption[s]” that the closure of the courtroom during jury selection “was a Sixth Amendment violation” and that “defense counsel provided ineffective assistance” by “failing to object” to it. Ante, at 290, 304. The Court previously held in a per curiam opinion—issued without the beneft of merits briefng or argument—that the Sixth Amendment right to a public trial extends to jury selection. See Presley v. Georgia, 558 U. S. 209, 213 (2010); id., at 216 (Thomas, J., dissenting). I have some doubts about whether that holding is consistent with the original understanding of the right to a public trial, and I would be open to reconsider- ing it in a case in which we are asked to do so.
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Second, the Court “assume[s],” for the “analytical purposes of this case,” that a defendant may establish prejudice under Strickland v. Washington, 466 U. S. 668 (1984), by demon- strating that his attorney's error led to a fundamentally un- fair trial. Ante, at 300. According to Strickland, a defend- ant may establish pre judice by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”; by showing an “[a]ctual or constructive denial of the assistance of counsel altogether”; or by showing that counsel labored under “an actual confict of interest.” 466 U. S., at 692–694. Strickland did not hold, as the Court assumes, that a defend- ant may establish prejudice by showing that his counsel's errors “rendered the trial fundamentally unfair.” Ante, at 300. Because the Court concludes that the closure during petitioner's jury selection did not lead to fundamental unfair- ness in any event, ante, at 304–305, no part of the discussion about fundamental unfairness, see ante, at 300–304, is neces- sary to its result.
In light of these observations, I do not read the opinion of the Court to preclude the approach set forth in Justice Alito's opinion, which correctly applies our precedents.
Justice Alito, with whom Justice Gorsuch joins, con-
curring in the judgment.
This case calls for a straightforward application of the familiar standard for evaluating ineffective-assistance-of- counsel claims. Strickland v. Washington, 466 U. S. 668, 687 (1984). Weaver cannot meet that standard, and there- fore his claim must be rejected.
The Sixth Amendment protects a criminal defendant's right “to have the Assistance of Counsel for his defence.” That right is violated when (1) “counsel's performance was defcient” in the relevant sense of the term and (2) “the def- cient performance prejudiced the defense.” Strickland, supra, at 687. The prejudice requirement—which is the one
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at issue in this case—“arises from the very nature” of the right to effective representation: Counsel simply “cannot be `ineffective' unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have).” United States v. Gonzalez-Lopez, 548 U. S. 140, 147 (2006). In other words, “a violation of the Sixth Amendment right to effective representation is not `complete' until the defend- ant is prejudiced.” Ibid.
Strickland's defnition of prejudice is based on the reli- ability of the underlying proceeding. “The benchmark for judging any claim of ineffectiveness must be whether coun- sel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as hav- ing produced a just result.” 466 U. S., at 686 (emphasis added); see United States v. Cronic, 466 U. S. 648, 658 (1984). This is so because “[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Strickland, 466 U. S., at 691–692. Accord- ingly, an attorney's error “does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., at 691.
Weaver makes much of the Strickland Court's statement that “the ultimate focus of inquiry must be on the fundamen- tal fairness of the proceeding.” Id., at 696. But the very next sentence clarifes what the Court had in mind, namely, the reliability of the proceeding. In that sentence, the Court explains that the proper concern—“[i]n every case”— is “whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable.” Ibid. In other words, the focus on reliability is consistent throughout the Strickland opinion.
To show that a counsel's error rendered a legal proceeding unreliable, a defendant ordinarily must demonstrate “a rea- sonable probability that, but for counsel's unprofessional er- rors, the result of the proceeding would have been different.”
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Id., at 694. In a challenge to a conviction, such as the one in this case, this means that the defendant must show “a reasonable probability that, absent the errors, the factfnder would have had a reasonable doubt respecting guilt.” Id., at 695.
The Court has relieved defendants of the obligation to make this affrmative showing in only a very narrow set of cases in which the accused has effectively been denied coun- sel altogether: These include the actual or constructive de- nial of counsel, state interference with counsel's assistance, or counsel that labors under actual conficts of interest. Id., at 692; Cronic, 466 U. S., at 658–660. Prejudice can be pre- sumed with respect to these errors because they are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustifed.” Id., at 658; see Strickland, supra, at 692; Mickens v. Taylor, 535 U. S. 162, 175 (2002).
In short, there are two ways of meeting the Strickland prejudice requirement. A defendant must demonstrate either that the error at issue was prejudicial or that it be- longs to the narrow class of attorney errors that are tanta- mount to a denial of counsel, for which an individualized showing of prejudice is unnecessary.
Weaver attempts to escape this framework by stressing that the deprivation of the right to a public trial has been described as a “structural” error, but this is irrelevant under Strickland. The concept of “structural error” comes into play when it is established that an error occurred at the trial level and it must be decided whether the error was harmless. See Neder v. United States, 527 U. S. 1, 7 (1999); Arizona v. Fulminante, 499 U. S. 279, 309–310 (1991). The prejudice prong of Strickland is entirely different. It does not ask whether an error was harmless but whether there was an error at all, for unless counsel's defcient performance preju- diced the defense, there was no Sixth Amendment violation in the frst place. See Gonzalez-Lopez, supra, at 150 (even
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where an attorney's defcient performance “pervades the en- tire trial,” “we do not allow reversal of a conviction for that reason without a showing of prejudice” because “the require- ment of showing prejudice in ineffectiveness claims stems from the very defnition of the right at issue”). Weaver's theory conficts with Strickland because it implies that an attorney's error can be prejudicial even if it “had no effect,” or only “some conceivable effect,” on the outcome of his trial. Strickland, supra, at 691, 693. That is precisely what Strickland rules out.
To sum up, in order to obtain relief under Strickland, Weaver must show that the result of his trial was unreliable. He could do so by demonstrating a reasonable likelihood that his counsel's error affected the verdict. Alternatively, he could establish that the error falls within the very short list of errors for which prejudice is presumed. Weaver has not attempted to make either argument, so his claim must be rejected. I would affrm the judgment of the Supreme Judi- cial Court of Massachusetts on that ground.
Justice Breyer, with whom Justice Kagan joins,
dissenting.
The Court notes that Strickland's “prejudice inquiry is not meant to be applied in a `mechanical' fashion,” ante, at 300 (quoting Strickland v. Washington, 466 U. S. 668, 696 (1984)), and I agree. But, in my view, it follows from this principle that a defendant who shows that his attorney's constitution- ally deficient performance produced a structural error should not face the additional—and often insurmountable— Strickland hurdle of demonstrating that the error changed the outcome of his proceeding.
In its harmless-error cases, this Court has “divided consti- tutional errors into two classes”: trial errors and structural errors. United States v. Gonzalez-Lopez, 548 U. S. 140, 148 (2006). Trial errors are discrete mistakes that “occu[r] dur- ing the presentation of the case to the jury.” Arizona v.
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Fulminante, 499 U. S. 279, 307 (1991). Structural errors, on the other hand, “affec[t] the framework within which the trial proceeds.” Id., at 310.
The Court has recognized that structural errors' distinc- tive attributes make them “defy analysis by `harmless-error' standards.” Id., at 309. It has therefore categorically ex- empted structural errors from the case-by-case harmlessness review to which trial errors are subjected. Our precedent does not try to parse which structural errors are the truly egregious ones. It simply views all structural errors as “intrinsically harmful” and holds that any structural error warrants “automatic reversal” on direct appeal “without re- gard to [its] effect on the outcome” of a trial. Neder v. United States, 527 U. S. 1, 7 (1999).
The majority here does not take this approach. It as- sumes that some structural errors—those that “lea[d] to fun- damental unfairness”—but not others, can warrant relief without a showing of actual prejudice under Strickland. Ante, at 296, 300–301. While I agree that a showing of fun- damental unfairness is suffcient to satisfy Strickland, I would not try to draw this distinction.
Even if some structural errors do not create fundamental unfairness, all structural errors nonetheless have features that make them “defy analysis by `harmless-error' stand- ards.” Fulminante, supra, at 309. This is why all struc- tural errors—not just the “fundamental unfairness” ones—are exempt from harmlessness inquiry and warrant automatic reversal on direct review. Those same features mean that all structural errors defy an actual-prejudice anal- ysis under Strickland.
For instance, the majority concludes that some errors— such as the public-trial error at issue in this case—have been labeled “structural” because they have effects that “are sim- ply too hard to measure.” Ante, at 295; see, e. g., Sullivan v. Louisiana, 508 U. S. 275, 281–282 (1993) (explaining that structural errors have “consequences that are necessarily
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unquantifable and indeterminate”). But how could any error whose effects are inherently indeterminate prove sus- ceptible to actual-pre judice analysis under Str ickland? Just as the “diffculty of assessing the effect” of such an error would turn harmless-error analysis into “a speculative inquiry into what might have occurred in an alternate uni- verse,” Gonzalez-Lopez, supra, at 149, n. 4, 150, so too would it undermine a defendant's ability to make an actual- prejudice showing to establish an ineffective-assistance claim.
The problem is evident with regard to public-trial viola- tions. This Court has recognized that “the benefts of a public trial are frequently intangible, diffcult to prove, or a matter of chance.” Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984). As a result, “a requirement that prejudice be shown `would in most cases deprive [the defendant] of the [public- trial] guarantee, for it would be diffcult to envisage a case in which he would have evidence available of specifc injury.' ” Ibid. (quoting United States ex rel. Bennett v. Rundle, 419 F. 2d 599, 608 (CA3 1969) (en banc); alteration in original). In order to establish actual prejudice from an attorney's fail- ure to object to a public-trial violation, a defendant would face the nearly impossible burden of establishing how his trial might have gone differently had it been open to the public. See Waller, surpa, at 49, n. 9 (“ `[D]emonstration of prejudice in this kind of case is a practical impossibility . . . ' ” (quoting State v. Sheppard, 182 Conn. 412, 418, 438 A. 2d 125, 128 (1980))).
I do not see how we can read Strickland as requiring de- fendants to prove what this Court has held cannot be proved. If courts do not presume prejudice when counsel's defcient performance leads to a structural error, then defendants may well be unable to obtain relief for incompetence that de- prived them “of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for deter- mination of guilt or innocence.” Neder, supra, at 8–9 (inter-
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nal quotation marks omitted). This would be precisely the sort of “mechanical” application that Strickland tells us to avoid.
In my view, we should not require defendants to take on a task that is normally impossible to perform. Nor would I give lower courts the unenviably complex job of deciphering which structural errors really undermine fundamental fair- ness and which do not—that game is not worth the candle. I would simply say that just as structural errors are categor- ically insusceptible to harmless-error analysis on direct re- view, so too are they categorically insusceptible to actual- prejudice analysis in Strickland claims. A showing that an attorney's constitutionally defcient performance produced a structural error should consequently be enough to entitle a defendant to relief. I respectfully dissent.
OCTOBER TERM, 2016
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TURNER et al. v. UNITED STATES
certiorari to the district of columbia court of appeals
No. 15–1503. Argued March 29, 2017—Decided June 22, 2017*
Petitioners—Timothy Catlett, Russell Overton, Levy Rouse, Kelvin Smith, Charles and Christopher Turner, and Clifton Yarborough—and several others were indicted for the kidnaping, robbery, and murder of Catherine Fuller. At trial, the Government advanced the theory that Fuller was attacked by a large group of individuals. Its evidentiary centerpiece consisted of the testimony of Calvin Alston and Harry Ben- nett, who confessed to participating in a group attack and cooperated with the Government in return for leniency. Several other Government witnesses corroborated aspects of Alston's and Bennett's testimony. Melvin Montgomery testifed that he was in a park among a group of people, heard someone say they were “going to get that one,” saw peti- tioner Overton pointing to Fuller, and saw several persons, including some petitioners, cross the street in her direction. Maurice Thomas testifed that he saw the attack, identifed some petitioners as partici- pants, and later overheard petitioner Catlett say that they “had to kill her.” Carrie Eleby and Linda Jacobs testifed that they heard screams coming from an alley where a “gang of boys” was beating someone near a garage, approached the group, and saw some petitioners participating in the attack. Finally, the Government played a videotape of petitioner Yarborough's statement to detectives, describing how he was part of a large group that carried out the attack. None of the defendants rebut- ted the prosecution witnesses' claims that Fuller was killed in a group attack. The seven petitioners were convicted.
Long after their convictions became fnal, petitioners discovered that the Government had withheld evidence from the defense at the time of trial. In postconviction proceedings, they argued that seven specifc pieces of withheld evidence were both favorable to the defense and ma- terial to their guilt under Brady v. Maryland, 373 U. S. 83. This evi- dence included the identity of a man seen running into the alley after the murder and stopping near the garage where Fuller's body had al- ready been found; the statement of a passerby who claimed to hear groans coming from a closed garage; and evidence tending to impeach
*Together with No. 15–1504, Overton v. United States, also on certiorari
to the same court.
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witnesses Eleby, Jacobs, and Thomas. The D. C. Superior Court re- jected petitioners' Brady claims, fnding that the withheld evidence was not material. The D. C. Court of Appeals affrmed.
Held: The withheld evidence is not material under Brady. Pp. 323–328. (a) The Government does not contest petitioners' claim that the with- held evidence was “favorable to the defense.” Petitioners and the Gov- ernment, however, do contest the materiality of the undisclosed Brady information. Such “evidence is `material' . . . when there is a reasonable probability that, had the evidence been disclosed, the result of the pro- ceeding would have been different.” Cone v. Bell, 556 U. S. 449, 469– 470. “A `reasonable probability' of a different result” is one in which the suppressed evidence “ `undermines confdence in the outcome of the trial.' ” Kyles v. Whitley, 514 U. S. 419, 434. To make that deter- mination, this Court “evaluate[s]” the withheld evidence “in the context of the entire record. ” United States v. Agurs, 427 U. S. 97, 112. Pp. 323–325.
(b) Petitioners' main argument is that, had they known about the withheld evidence, they could have challenged the Government's basic group attack theory by raising an alternative theory, namely, that a single perpetrator (or two at most) had attacked Fuller. Considering the withheld evidence “in the context of the entire record,” Agurs, supra, at 112, that evidence is too little, too weak, or too distant from the main evidentiary points to meet Brady's standards.
A group attack was the very cornerstone of the Government's case, and virtually every witness to the crime agreed that Fuller was killed by a large group of perpetrators. It is not reasonably probable that the withheld evidence could have led to a different result at trial. Peti- tioners' problem is that their current alternative theory would have had to persuade the jury that both Alston and Bennett falsely confessed to being active participants in a group attack that never occurred; that Yarborough falsely implicated himself in that group attack and yet gave a highly similar account of how it occurred; that Thomas, an otherwise disinterested witness, wholly fabricated his story; that both Eleby and Jacobs likewise testifed to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave together to rob her.
As for the undisclosed impeachment evidence, the record shows that it was largely cumulative of impeachment evidence petitioners already had and used at trial. This is not to suggest that impeachment evidence is immaterial with respect to a witness who has already been impeached with other evidence, see Wearry v. Cain, 577 U. S. 385, 392–394. But in the context of this trial, with respect to these witnesses, the cumulative
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effect of the withheld evidence is insuffcient to undermine confdence in the jury's verdict, see Smith v. Cain, 565 U. S. 73, 75–76. Pp. 325–328.
116 A. 3d 894, affrmed.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Alito, and Sotomayor, JJ., joined. Kagan, J., fled a dissenting opinion, in which Ginsburg, J., joined, post, p. 330. Gorsuch, J., took no part in the consideration or decision of the cases.
John S. Williams argued the cause for petitioners in No. 15–1503. With him on the briefs were Robert M. Cary, Kannon K. Shanmugam, Shawn Armbrust, Bar ry J. Pollack, Veronice A. Holt, Jenifer Wicks, and Donald P. Salzman.
Deanna M. Rice argued the cause for petitioner in No. 15–1504. With her on the briefs were Michael E. Antal- ics, Jonathan D. Hacker, and Kevin D. Feder.
Deputy Solicitor General Dreeben argued the cause for the United States in both cases. With him on the brief were Acting Solicitor General Francisco, Acting Assistant Attor- ney General Blanco, Ann O'Connell, and Elizabeth D. Collery.†
Justice Breyer delivered the opinion of the Court. In Brady v. Maryland, 373 U. S. 83 (1963), this Court held that the government violates the Constitution's Due Process Clause “if it withholds evidence that is favorable to the de- fense and material to the defendant's guilt or punishment.”
†Briefs of amici curiae urging reversal in both cases were fled for the Cato Institute by Jeffrey M. Harris, Beth A. Williams, Damon C. An- drews, and Ilya Shapiro; for the Center on Wrongful Convictions of Youth by Laura H. Nirider, Steven A. Drizin, and Megan G. Crane; for Former Prosecutors by Julia M. Jordan, Elizabeth A. Cassady, and H. Rodgin Cohen; for the Innocence Network by Richard W. Mark, Amer S. Ahmed, Gabriel K. Gillett, and David Debold; for the National Association of Criminal Defense Lawyers by Jeffrey T. Green, David Porter, and Sarah O'Rourke Schrup; for the Texas Public Policy Foundation et al. by John D. Cline and Robert Henneke; and for Wilfredo Lora by Alan B. Morrison.
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Smith v. Cain, 565 U. S. 73, 75 (2012) (emphasis added) (sum- marizing Brady holding). In 1985 the seven petitioners in these cases were tried together in the Superior Court for the District of Columbia for the kidnaping, armed robbery, and murder of Catherine Fuller. Long after petitioners' convictions became fnal, it emerged that the Government possessed certain evidence that it failed to disclose to the defense. The only question before us here is whether that withheld evidence was “material” under Brady. The D. C. Superior Court, after a 16-day evidentiary hearing, deter- mined that the withheld evidence was not material. Catlett v. United States, Crim. No. 8617–FEL–84 etc. (Aug. 6, 2012), App. to Pet. for Cert. in No. 15–1503, pp. 84a, n. 4, 81a–131a. The D. C. Court of Appeals reviewed the record, reached the same conclusion, and affrmed the Superior Court. 116 A. 3d 894 (2015). After reviewing the record, we reach the same conclusion as did the lower courts.
I
In these fact-intensive cases, we set out here only a basic description of the record facts along with our reasons for reaching our conclusion. We refer those who wish more de- tail to the opinions of the lower courts. App. to Pet. for Cert. in No. 15–1503, at 81a–131a; 116 A. 3d 894.
A
The Trial On March 22, 1985, a grand jury indicted the seven peti- tioners—Timothy Catlett, Russell Overton, Levy Rouse, Kelvin Smith, Charles Turner, Christopher Turner, and Clif- ton Yarborough—and several others for the kidnaping, rob- bery, and murder of Catherine Fuller. The evidence produced at their joint trial showed that on October 1, 1984, at around 4:30 p.m., Catherine Fuller left her home to go shopping. At around 6 p.m., William Freeman, a street ven- dor, found Fuller's body inside an alley garage between
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Eighth and Ninth Streets N. E., just a few blocks from Full- er's home. See Appendix, infra (showing a map of the area in which the murder was committed). Fuller had been robbed, severely beaten, and sodomized with an object that caused extensive internal injuries.
The Government advanced the theory at trial that Fuller had been attacked in the alley by a large group of individu- als, including petitioners; codefendants Steve Webb, Alfonso Harris, and Felicia Ruffn; as well as by Calvin Alston and Harry Bennett. The Government's evidentiary centerpiece consisted of testimony by Alston and Bennett, who confessed to participating in the offense and who cooperated with the Government in return for leniency. Although the testimony of Alston and Bennett diverged on minor details, it was con- sistent in stating that, and describing how, Fuller was at- tacked by a sizable group of individuals, including petitioners and they themselves.
Alston testifed that at about 4:10 p.m. on the day of the murder, he arrived in a park located on H Street between Eighth and Ninth Streets. He said he found a group of peo- ple gathered there. It included petitioners Levy Rouse, Russell Overton, Christopher Turner, Charles Turner, Kel- vin Smith, Clifton Yarborough, and Timothy Catlett, as well as several codefendants and others. Those in the group were talking and singing while Catlett was banging out a beat. Alston suggested “getting paid” by robbing someone. Record A467. Catlett, Overton, Rouse, Smith, Charles Turner, Christopher Turner, Yarborough, and several others agreed. Alston pointed at Catherine Fuller, who was walk- ing on the other side of H Street near the corner of H and Eighth Streets. Those in the group said they were “game for getting paid.” Id., at A471–A472. Alston, Rouse, Yar- borough, and Charles Turner crossed H Street moving toward Eighth Street and followed Fuller down Eighth Street. The rest of the group crossed H Street and moved toward Ninth Street. When Alston's group approached Fuller, Charles
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Turner shoved her into an alley that runs between Eighth and Ninth Streets. Charles Turner, Rouse, and Alston began punching Fuller. They were soon joined by Christo- pher Turner, Smith, and others. All of them continued to hit and kick Fuller until she fell to the ground. Rouse and Charles Turner then carried Fuller to the center of the alley and dropped her in front of a garage located at the point where the alley joins another, perpendicular alley that runs toward I Street. Someone dragged Fuller into the garage. Alston, Rouse, Charles Turner, Overton, Yarborough, and Catlett followed. Others stood outside. Members of the group tore Fuller's clothes off and struggled over her change purse. Overton and Charles Turner then held Fuller's legs, and Alston, Catlett, Harris, and Yarborough stood around her while Rouse sodomized her with a foot-long pipe. Shortly after, the group dispersed and left the alley.
Harry Bennett's testimony was similar. Bennett also de- scribed a group attack. He said that he had gone to the H Street park, where he saw Rouse, Overton, Christopher Turner, Smith, Catlett, and others gathered. Alston was talking to the group about “[g]etting paid” and said “let's go get that lady.” Id., at A368–A370. At that point Alston, Rouse, Overton, and Webb crossed H Street and approached Fuller, while Catlett, Christopher Turner, Charles Turner, and Harris followed in a separate group. Bennett added that he himself went to the corner of Eighth and H Streets to watch for police. He then went into the alley and joined the group in kicking and beating Fuller. He testifed that at least 12 people were there, with some beating Fuller and others watching or picking up her jewelry. Overton then dragged Fuller into the garage, and Bennett, Rouse, Christo- pher Turner, Charles Turner, Catlett, Smith, Harris, and Webb followed, as did some “girls.” Id., at A402–A405. Alston and Steve Webb held Fuller's legs, and Rouse sodom- ized her with a pole. The group then dispersed from the garage and alley.
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The Government presented several other witnesses who corroborated aspects of Alston's and Bennett's testimony, in- cluding the fact that Fuller was attacked by a group. Mel- vin Montgomery testifed that he was in the H Street park on the afternoon of the murder. He saw Overton, Catlett, Rouse, Charles Turner, and others gathered there. The group was being noisy and singing a song about needing money. Somebody then said they were “going to get that one,” and Montgomery saw that Overton was pointing to a woman standing on the corner of Eighth Street. App. 77– 79. Overton, Catlett, Rouse, Charles Turner, and others crossed H Street. Some headed toward Eighth Street while others went toward Ninth Street. Montgomery did not fol- low them.
Maurice Thomas, then 14 years old, testifed that he wit- nessed the attack itself. Thomas lived in the neighborhood and knew many of the defendants. As he was walking home, he glanced down the Eighth Street alley and saw a group surrounding Fuller. Thomas saw Catlett pat Fuller down and then hit her. He then saw everyone in the group join in hitting her. Thomas said he knew Catlett, Yarbor- ough, Rouse, Charles Turner, Christopher Turner, and Smith and recognized them in the group. Thomas heard Fuller calling for help. He ran home where he found his aunt, who told him not to tell anyone what he saw. Later that day, Thomas saw Catlett at a corner store, and heard Catlett say to someone that they “had to kill her” because “she spotted someone he was with.” Id., at 127–128.
On the afternoon of the murder, Carrie Eleby and Linda Jacobs were looking for petitioner Smith, who was Eleby's boyfriend, near the corner of H and Eighth Streets. They heard screams coming from where a “gang of boys” was beat- ing somebody near the garage in the alley. Record A539– A541. Eleby and Jacobs approached the group. Eleby rec- ognized Christopher Turner, Smith, Catlett, Rouse, Overton, Alston, and Webb kicking Fuller while Yarborough stood
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nearby. Both Eleby and Jacobs testifed that they saw Rouse sodomize Fuller with a pole. Eleby added that Overton held Fuller's legs.
Finally, the Government played a videotape of a recorded statement that Yarborough, one of the petitioners, had given to detectives on December 9, 1984, approximately two months after the murder. Names were redacted. The video shows Yarborough describing in detail how he was part of a large group that forced Fuller into the alley, jointly robbed and assaulted her, and dragged her into the garage. None of the defendants tried, through witnesses or other evidence, to rebut the prosecution's claim that Fuller was killed in a group attack. Rather, each petitioner pursued what was essentially a “not me, maybe them” defense, namely, that he was not part of the group that attacked Ful- ler. Each tried to establish this defense by impeaching wit- nesses who had placed that particular petitioner at the scene. Some, for example, provided evidence that Eleby and Jacobs had used PCP the day of Fuller's murder. Some also tried to establish alibis for the time of Fuller's death.
The jury convicted all seven petitioners, along with co- defendant Steve Webb (who subsequently died). The jury acquitted codefendants Alfonso Harris and Felicia Ruffn. On direct appeal, the D. C. Court of Appeals affrmed peti- tioners' convictions, though it remanded for resentencing. Catlett v. United States, 545 A. 2d 1202, 1219 (1988). The trial court resentenced petitioners to the same amount of prison time. App. to Pet. for Cert. in No. 15–1503, at 82a, n. 2.
B The Brady Claims Beginning in 2010, petitioners pursued postconviction pro- ceedings in which they sought to vacate their convictions or to be granted a new trial. App. to Pet. for Cert. in No. 15– 1503, at 84a, n. 4. After petitioners' convictions became fnal, it emerged that the Government possessed certain evi- dence that it had withheld from the defense at the time of
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trial. Petitioners discovered other withheld evidence in their review of the trial prosecutor's case fle, which the Government turned over to petitioners in the course of the postconviction proceedings. Among other postconviction claims, petitioners contended that the withheld evidence was both favorable and material, entitling them to relief under Brady.
The D. C. Superior Court considered petitioners' Brady claims as part of a 16-day evidentiary hearing. It rejected those claims, fnding that “none of the undisclosed informa- tion was material.” App. to Pet. for Cert. in No. 15–1503, at 130a. The D. C. Court of Appeals affrmed. 116 A. 3d, at 901. It similarly concluded that the withheld evidence was not material under Brady. 116 A. 3d, at 913–926. At issue in those proceedings were the following seven specifc pieces of evidence:
1. The identity of James McMillan. Freeman, the ven- dor who discovered Fuller's body in the alley garage, testi- fed at trial that, while he was waiting for police to arrive, he saw two men run into the alley and stop near the garage for about fve minutes before running away when an offcer approached. One of the men had a bulge under his coat. Early in the trial, codefendant Harris' counsel had requested the identity of the two men to confrm that her client was not one of them. But the Government refused to disclose the men's identity.
In their postconviction review of the prosecutor's fles, petitioners learned that Freeman had identifed the two men he saw in the alley as James McMillan and Gerald Merker- son. McMillan lived in a house which opens in the back onto a connecting alley. In the weeks following Fuller's murder, but before petitioners' trial, McMillan was arrested for beat- ing and robbing two women in the neighborhood. Neither attack included a sexual assault. Separately, petitioners learned that seven years after petitioners' trial, McMillan had robbed, sodomized, and murdered a young woman in an alley.
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2. The interview with Willie Luchie. The prosecutor's notes also recorded an undisclosed interview with Willie Lu- chie, who told the prosecutor that he and three others walked through the alley on their way to an H Street liquor store between 5:30 and 5:45 p.m. on the evening of the mur- der. As the group walked by the garage, Luchie “heard sev- eral groans” and “remembers the doors to the garage being closed.” App. 25. Another person in the group recalled “hear[ing] some moans,” while the other two persons did not recall hearing anything unusual. Id., at 27, 53; Record A992. The group continued walking without looking into the garage or otherwise investigating the source of the sounds. They did not see McMillan or any other person in the alley when they passed through.
3. The interviews with Ammie Davis. Undisclosed notes written by a police offcer and the prosecutor refer to two interviews with Ammie Davis, who had been arrested for disorderly conduct a few weeks af ter Fuller 's murder. Davis initially told a police investigator that she had seen another individual, James Blue, beat Fuller to death in the alley. Shortly thereafter, she said she only saw Blue grab Fuller and push her into the alley. Davis also said that a girlfriend, whom she did not name, accompanied her. She promised to call the investigator with more details, but she did not do so.
About 9 months later (after petitioners were indicted but approximately 11 weeks before their trial), a prosecutor learned of the investigator's notes and interviewed Davis. The prosecutor's notes state that Davis did not provide any more details, except to say that the girlfriend who accompa- nied her was nicknamed “ `Shorty.' ” App. 267–268. About two months later, which was shortly before petitioners' trial, Blue murdered Davis in an unrelated drug dispute.
During the postconviction evidentiary hearing, the prose- cutor who interviewed Davis testifed that he did not disclose Davis' statement because she acted “playful” and “not seri-
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ous” during the interview and he found her to be “totally incredible.” Id., at 269–272. Additionally, the prosecutor stated that he knew Davis had previously falsely accused Blue of a different murder, and on another occasion had falsely accused a different individual of a different murder. 4. Impeachment of Kaye Porter and Carrie Eleby. Kaye Porter accompanied Eleby during an initial interview with homicide detectives. Porter agreed with Eleby that she had also heard Alston state that he was involved in robbing Ful- ler. An undisclosed prosecutorial note states that in a later interview with detectives, Porter stated that she did not ac- tually recall hearing Alston's statement and just went along with what Eleby said. The note also states that Eleby like- wise admitted that she had lied about Porter being present during Alston's statement and had asked Porter to sup- port her.
5. Impeachment of Carrie Eleby. A prosecutor's un- disclosed note revealed that Eleby said she had been high on PCP during a January 9, 1985, meeting with investigators. 6. Impeachment of Linda Jacobs. An undisclosed note of an interview with Linda Jacobs said that the detective had “question[ed] her hard” and that she had “vacillated” about what she saw. Record A1009. The prosecutor recalled that the detective “kept raising his voice” and was “smacking his hand on the desk” during the interview. Id., at A2298– A2299.
7. Impeachment of Maurice Thomas. An undisclosed note of an interview with Maurice Thomas' aunt stated that she “does not recall Maurice ever telling her anything such as this.” Id., at A1010; see App. 295–296.
II
A
The Government does not contest petitioners' claim that the withheld evidence was “favorable to the accused, either because it is exculpatory, or because it is impeaching.”
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Strickler v. Greene, 527 U. S. 263, 281–282 (1999). Neither does the Government contest petitioners' claim that it “sup- pressed” the evidence, “either willfully or inadvertently.” Id., at 282. It does, as it must, concede that the Brady rule's “ `overriding concern [is] with the justice of the fnding of guilt,' ” United States v. Bagley, 473 U. S. 667, 678 (1985) (quoting United States v. Agurs, 427 U. S. 97, 112 (1976)), and that the Government's “ `interest . . . in a criminal prosecu- tion is not that it shall win a case, but that justice shall be done,' ” Kyles v. Whitley, 514 U. S. 419, 439 (1995) (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). Consistent with these principles, the Government assured the Court at oral argument that subsequent to petitioners' trial, it has adopted a “generous policy of discovery” in criminal cases under which it discloses any “information that a defendant might wish to use.” Tr. of Oral Arg. 47–48. As we have recognized, and as the Government agrees, ibid., “[t]his is as it should be.” Kyles, supra, at 439 (explaining that a “ `pru- dent prosecutor['s]' ” better course is to take care to disclose any evidence favorable to the defendant (quoting Agurs, supra, at 108)).
Petitioners and the Government, however, do contest the materiality of the undisclosed Brady information. “[E]vi- dence is `material' within the meaning of Brady when there is a reasonable probability that, had the evidence been dis- closed, the result of the proceeding would have been differ- ent.” Cone v. Bell, 556 U. S. 449, 469–470 (2009) (citing Bag- ley, supra, at 682). “A `reasonable probability' of a different result” is one in which the suppressed evidence “ `under- mines confidence in the outcome of the trial. ' ” Kyles, supra, at 434 (quoting Bagley, supra, at 678). In other words, petitioners here are entitled to a new trial only if they “establis[h] the prejudice necessary to satisfy the `mate- riality' inquiry.” Strickler, supra, at 282.
Consequently, the issue before us here is legally simple but factually complex. We must examine the trial record,
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“evaluat[e]” the withheld evidence “in the context of the en- tire record,” Agurs, supra, at 112, and determine in light of that examination whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different,” Cone, supra, at 470 (citing Bagley, supra, at 682). Having done so, we agree with the lower courts that there was no such reasonable probability.
B
Petitioners' main argument is that, had they known about McMillan's identity and Luchie's statement, they could have challenged the Government's basic theory that Fuller was killed in a group attack. Petitioners contend that they could have raised an alternative theory, namely, that a single per- petrator (or two at most) had attacked Fuller. According to petitioners, the groans that Luchie and his companion heard when they walked through the alley between 5:30 and 5:45 p.m. suggest that the attack was taking place inside the ga- rage at that moment. The added facts that the garage was small and that Luchie's group saw no one in the alley could bolster a “single attacker” theory. Freeman's recollection that one garage door was open when he found Fuller's body at around 6 p.m., combined with Luchie's recollection that both doors were shut around 5:30 or 5:45 p.m., could suggest that one or two perpetrators were in the garage when Lu- chie walked by but left before Freeman arrived. McMillan's identity as one of the men Freeman saw enter the alley after Freeman discovered Fuller's body would have revealed Mc- Millan's criminal convictions in the months before petition- ers' trial. Petitioners argue that together, this evidence would have permitted the defense to knit together a theory that the group attack did not occur at all—and that it was actually McMillan, alone or with an accomplice, who mur- dered Fuller. They add that they could have used the inves- tigators' failure to follow up on Ammie Davis' claim about James Blue, and the various pieces of withheld impeachment
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evidence, to suggest that an incomplete investigation had ended up accusing the wrong persons.
Considering the withheld evidence “in the context of the entire record,” however, Agurs, supra, at 112, we conclude that it is too little, too weak, or too distant from the main evidentiary points to meet Brady's standards. As petition- ers recognize, McMillan's guilt (or that of any other single, or near single, perpetrator) is inconsistent with petitioners' guilt only if there was no group attack. But a group attack was the very cornerstone of the Government's case. The witnesses may have differed on minor details, but virtually every witness to the crime itself agreed as to a main theme: that Fuller was killed by a large group of perpetrators. The evidence at trial was such that, even though petitioners knew that Freeman saw two men enter the alley after he discov- ered Fuller's body, that one appeared to have a bulky object hidden under his coat, and that both ran when the police arrived, none of the petitioners attempted to mount a de- fense that implicated those men as alternative perpetrators acting alone.
Is it reasonably probable that adding McMillan's identity, and Luchie's ambiguous statement that he heard groans but saw no one, could have led to a different result at trial? We conclude that it is not. The problem for petitioners is that their current alternative theory would have had to persuade the jury that both Alston and Bennett falsely confessed to being active participants in a group attack that never oc- curred; that Yarborough falsely implicated himself in that group attack and, through coordinated effort or coincidence, gave a highly similar account of how it occurred; that Thomas, a disinterested witness who recognized petitioners when he happened upon the attack and heard Catlett refer to it later that night, wholly fabricated his story; that both Eleby and Jacobs likewise testifed to witnessing a group attack that did not occur; and that Montgomery in fact did
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not see petitioners and others, as a group, identify Fuller as a target and leave the park to rob her.
With respect to the undisclosed impeachment evidence, the record shows that it was largely cumulative of impeachment evidence petitioners already had and used at trial. For ex- ample, the jury heard multiple times about Eleby's frequent PCP use, including Eleby's own testimony that she and Ja- cobs had smoked PCP shortly before they witnessed Fuller's attack. In this context, it would not have surprised the jury to learn that Eleby used PCP on yet another occasion. Por- ter was a minor witness who was also impeached at trial with evidence about changes in her testimony over time, leaving little added signifcance to the note that she changed her mind about having agreed with Eleby's claims. The jury was also well aware of Jacobs' vacillation, as she was impeached on the stand with her shifting stories about what she witnessed. Knowledge that a detective raised his voice during an interview with her would have added little more. Nor do we see how the note about the statement by Thomas' aunt could have mattered much, given the facts that neither side chose to call the aunt as a witness and that the jury already knew, from Thomas' testimony, that his aunt had told him not to tell anyone what he saw. As for James Blue, petitioners argue that the investigators' delay in following up on Ammie Davis' statement could have led the jury to doubt the thoroughness of the investigation. But this likeli- hood is seriously undercut by notes about Davis' demeanor and lack of detail, and by her prior false accusations that Blue committed a different murder and that yet another per- son committed yet a different murder.
We of course do not suggest that impeachment evidence is immaterial with respect to a witness who has already been impeached with other evidence. See Wearry v. Cain, 577 U. S. 385, 392–394 (2016) (per curiam). We conclude only that in the context of this trial, with respect to these wit-
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nesses, the cumulative effect of the withheld evidence is in- suffcient to “ `undermine confdence' ” in the jury's verdict, Smith, 565 U. S., at 75–76 (quoting Kyles, 514 U. S., at 434; brackets omitted).
III
On the basis of our review of the record, we agree with the lower courts that there is not a “reasonable probability” that the withheld evidence would have changed the outcome of petitioners' trial, id., at 434 (internal quotation marks omitted). The judgment of the D. C. Court of Appeals, accordingly, is affrmed.
It is so ordered.
Justice Gorsuch took no part in the consideration or de-
cision of these cases.
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APPENDIX
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Kagan, J., dissenting
Justice Kagan, with whom Justice Ginsburg joins,
dissenting.
Consider two criminal cases. In the frst, the government accuses ten defendants of acting together to commit a vicious murder and robbery. At trial, each defendant accepts that the attack occurred almost exactly as the government de- scribes—contending only that he wasn't part of the rampag- ing group. The defendants thus undermine each other's ar- guments at every turn. In the second case, the government makes the same arguments as before. But this time, all of the accused adopt a common defense, built around an alter- native account of the crime. Armed with new evidence that someone else perpetrated the murder, the defendants vigor- ously dispute the government's gang-attack narrative and challenge the credibility of its investigation. The question this case presents is whether such a unifed defense, relying on evidence unavailable in the frst scenario, had a “reason- able probability” (less than a preponderance) of shifting even one juror's vote. Cone v. Bell, 556 U. S. 449, 452, 470 (2009); see Kyles v. Whitley, 514 U. S. 419, 434 (1995).
That is the relevant question because the Government here knew about but withheld the evidence of an alternative perpetrator—and so prevented the defendants from coming together to press that theory of the case. If the Govern- ment's non-disclosure was material, in the sense just de- scribed, this Court's decision in Brady v. Maryland, 373 U. S. 83 (1963), demands a new trial. The Court today holds it was not material: In light of the evidence the Government offered, the majority argues, the transformed defense stood little chance of persuading a juror to vote to acquit. That conclusion is not indefensible: The Government put on quite a few witnesses who said that the defendants committed the crime. But in the end, I think the majority gets the answer in this case wrong. With the undisclosed evidence, the whole tenor of the trial would have changed. Rather than relying on a “not me, maybe them” defense, ante, at 320, all
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the defendants would have relentlessly impeached the Gov- ernment's (thoroughly impeachable) witnesses and offered the jurors a way to view the crime in a different light. In my view, that could well have fipped one or more jurors— which is all Brady requires.
Before explaining that view, I note that the majority and I share some common ground. We agree on the universe of exculpatory or impeaching evidence suppressed in this case: The majority's description of that evidence, and of the trial held without it, is scrupulously fair. See ante, at 316–320, 321–323. We also agree—as does the Government—that such evidence ought to be disclosed to defendants as a matter of course. See ante, at 324. Constitutional requirements aside, turning over exculpatory materials is a core responsi- bility of all prosecutors—whose professional interest and ob- ligation is not to win cases but to ensure justice is done. See Kyles, 514 U. S., at 439. And fnally, we agree on the legal standard by which to assess the materiality of undisclosed evidence for purposes of applying the constitutional rule: Courts are to ask whether there is a “reasonable probability” that disclosure of the evidence would have led to a different outcome—i. e., an acquittal or hung jury rather than a con- viction. See ante, at 325.
But I part ways with the majority in applying that stand- ard to the evidence withheld in this case. That evidence falls into three basic categories, discussed below. Taken to- gether, the materials would have recast the trial signif- cantly—so much so as to “undermine[ ] confdence” in the guilty verdicts reached in their absence. Kyles, 514 U. S., at 434.
First, the Government suppressed information identifying a possible alternative perpetrator. The defendants knew that, shortly before the police arrived, witnesses had ob- served two men acting suspiciously near the alleyway garage where Catherine Fuller's body was found. But they did not know—because the Government never told them—that a
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witness had identifed one of those men as James McMillan. Equipped with that information, the defendants would have discovered that in the weeks following Fuller's murder, Mc- Millan assaulted and robbed two other women of comparable age in the same neighborhood. And using that information, the defendants would have united around a common defense. They would all have pointed their fngers at McMillan (rather than at each other), arguing that he committed Full- er's murder as part of a string of similar crimes.
Second, the Government suppressed witness statements suggesting that one or two perpetrators—not a large group—carried out the attack. Those statements were given by two individuals who walked past the garage around the time of Fuller's death. They told the police that they heard groans coming from inside the garage; and one remarked that the garage's doors were closed at the time. Introducing that evidence at trial would have sown doubt about the Government's group-attack narrative, because that many people (as everyone agrees) couldn't have ft inside the small garage. And the questions thus raised would have further supported the defendants' theory that McMillan (and perhaps an accomplice) had committed the murder.
Third and fnally, the Government suppressed a raft of evi- dence discrediting its investigation and impeaching its wit- nesses. Undisclosed fles, for example, showed that the po- lice took more than nine months to look into a witness's claim that a man named James Blue had murdered Fuller. Evi- dence of that kind of negligence could easily have led jurors to wonder about the competence of all the police work done in the case. Other withheld documents revealed that one of the Government's main witnesses was high on PCP when she met with investigators to identify participants in the crime— and that she also encouraged a friend to lie to the police to support her story. Using that sort of information, see also ante, at 323, the defendants could have undercut the Govern- ment's witnesses—even while presenting their own account of the murder.
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In reply to all this, the majority argues that “none of the [accused] attempted to mount [an alternative-perpetrator] defense” and that such a defense would have challenged “the very cornerstone of the Government's case.” Ante, at 326. But that just proves my point. The defendants didn't offer an alternative-perpetrator defense because the Government prevented them from learning what made it credible: that one of the men seen near the garage had a record of assault- ing and robbing middle-aged women, and that witnesses would back up the theory that only one or two individuals had committed the murder. Moreover, that defense had game-changing potential exactly because it challenged the cornerstone of the Government's case. Without the with- held evidence, each of the defendants had little choice but to accept the Government's framing of the crime as a group attack—and argue only that he wasn't there. That meant the defendants often worked at cross-purposes. In particu- lar, each defendant not identifed by a Government witness sought to bolster that witness's credibility, no matter the harm to his co-defendants. As one defense lawyer re- marked after another's supposed cross-examination of a Gov- ernment witness: “They've got [an extra] prosecutor[ ] in the courtroom now.” Saperstein & Walsh, 10 Defendants Com- plicate Trial, Washington Post, Nov. 17, 1985, p. A14, col. 1. Credible alternative-perpetrator evidence would have al- lowed the defendants to escape this cycle of mutually assured destruction. By enabling the defendants to jointly attack the Government's “cornerstone” theory, the withheld evi- dence would have reframed the case presented to the jury. Still, the majority claims, an alternative-perpetrator de- fense would have had no realistic chance of changing the out- come because the Government had ample evidence of a group attack, including fve witnesses who testifed that they had participated in it or seen it happen. See ante, at 326–327. But the Government's case wasn't nearly the slam-dunk the majority suggests. No physical evidence tied any of the de- fendants to the crime—a highly surprising fact if, as the
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Government claimed, more than ten people carried out a spur-of-the-moment, rampage-like attack in a confned space. And as even the majority recognizes, the Government's fve eyewitnesses had some serious credibility defcits. See ante, at 327. Two had been charged as defendants, and agreed to testify only in exchange for favorable plea deals. See 116 A. 3d 894, 902 (D. C. 2015). Two admitted they were high on PCP at the time. See id., at 903, 911; App. A535– (As noted above, one was also high when she A536, A649. later met with police to identify the culprits.) One was an eighth-grader whose own aunt contradicted parts of his trial testimony. See 116 A. 3d, at 903, 911. Even in the absence of an alternative account of the crime, the jury took more than a week—and many dozens of votes—to reach its fnal verdict. Had the defendants offered a unified counter- narrative, based on the withheld evidence, one or more ju- rors could well have concluded that the Government had not proved its case beyond a reasonable doubt.
Again, the issue here concerns the difference between two criminal cases. The Government got the case it most wanted—the one in which the defendants, each in an effort to save himself, formed something of a circular fring squad. And the Government avoided the case it most feared—the one in which the defendants acted jointly to show that a man known to assault women like Fuller committed her murder. The difference between the two cases lay in the Government's files—evidence of obvious relevance that prosecutors nonetheless chose to suppress. I think it could have mattered to the trial's outcome. For that reason, I re- spectfully dissent.