source: Caselaw Access Project

author: Justice White Justice Blackmun,

license: Public Domain

text:
    PENNSYLVANIA et al. v. DELAWARE VALLEY CITIZENS’ COUNCIL FOR CLEAN AIR et al.
    No. 85-5.
    Argued March 3, 1986
    Decided July 2, 1986

      White, J., delivered the opinion of the Court, in which BurgeR, C. J., and Powell, Rehnquist, Stevens, and O’ConnoR, JJ., joined, and in Parts I and II of which BRENNAN, MARSHALL, and Blackmun, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, and in Part II of which Brennan, J., joined, post, p. 568.

      Jay C. Waldman argued the cause for petitioners. With him on the briefs were Henry G. Barr, Spencer A. Man-thorpe, John M. Hrubovcak, and John P. Krill.

      Kathryn A. Oberly argued the cause for the United States as respondent under this Court’s Rule 19.6 in support of petitioners. With her on the brief were Solicitor General Fried, F. Henry Habicht II, and Deputy Solicitor General Getter.

      ■James D. Crawford argued the cause for respondents. With him on the brief was Joyce S. Meyers.

      A brief of amici curiae was filed for the State of Arizona et al. by Francis X. Bellotti, Attorney General of Massachusetts, and Suzanne E. Durrell, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, Joseph I. Lieberman, Attorney General of Connecticut, Michael J. Bowers, Attorney General of Georgia, Richard G. Opper, Attorney General of Guam, Corinne K. A. Watanabe, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Stephen H. Sachs, Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, and Louis J. Caruso, Solicitor General, Edwin Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Stephen E. Merrill, Attorney General of New Hampshire, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael C. Turpén, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Jeffrey L. Amestoy, Attorney General of Vermont, William Broaddus, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, Charles G. Brown, Attorney General of West Virginia, and A. G. McClintock, Attorney General of Wyoming.

   Justice White

delivered the opinion of the Court.

The questions presented in this case are first, whether the Clean Air Act, 42 U. S. C. §7401 et seq., authorizes attorney’s fees awards for time spent by counsel participating in regulatory proceedings; second, whether a court may enhance an award to reflect superior quality of representation rendered by plaintiff’s counsel; and third, whether enhancement of the fee is proper because of plaintiff’s risk of not prevailing on the merits.

I

In 1977, the Delaware Valley Citizens’ Council for Clean Air (Delaware Valley) and the United States each filed suit to compel the Commonwealth of Pennsylvania to implement a vehicle emission inspection and maintenance program (I/M program) as required by the Clean Air Act. See 42 U. S. C. § 7410. Pursuant to a consent decree approved in 1978, the Commonwealth agreed to establish an I/M program for 10 counties in the Philadelphia and Pittsburgh areas by August 1, 1980. The decree called for the Pennsylvania Department of Transportation (PennDOT) to seek legislation instituting a franchise I/M system under which the Commonwealth would contract with garage owners for the establishment of inspection stations. If the legislature failed to approve such a system, then the decree required PennDOT to promulgate regulations allowing Pennsylvania to certify a number of private garage facilities to perform the inspections. In addition, the decree provided for Pennsylvania to pay Delaware Valley $30,000 for attorney’s fees and costs incurred prior to the entry of the consent decree.

Entry of the consent decree marked only the beginning of this story, for implementation of the I/M program did not proceed smoothly. For simplicity’s sake, we will summarize the relevant factual developments into nine phases, with each phase relating to a different aspect of the litigation. Not only is this the method used by the parties and followed by both lower courts, but it is a system for analyzing requests for attorney’s fees and costs that appears to be useful in protracted litigation.

Phase I. After entry of the consent decree, the Pennsylvania Legislature refused to enact a franchise system. Under the decree, PennDOT then, had until July 1, 1979 to publish the necessary regulations. When PennDOT failed to comply, Delaware Valley moved to have the Commonwealth held in contempt; PennDOT published the proposed regulations, however, before the scheduled hearing on the motion. The court thus refrained from finding the Commonwealth in contempt, but ordered the parties to establish a revised schedule for implementation of the I/M program approved by the consent decree.

Phase II. After PennDOT published the proposed I/M program regulations, Delaware Valley continued to monitor the Commonwealth’s performance under the consent decree, and submitted comments on the regulations which were published in the Pennsylvania Bulletin.

Phase III. In late 1979, the Commonwealth requested a modification of the decree delaying implementation of the I/M program until May 1981. With Delaware Valley’s approval, the District Court approved the extension in March 1980.

Phase TV. By February 1981, the Commonwealth still had not published final regulations covering the type of equipment which private garages needed to have in order to become certified inspection stations. The Commonwealth thus asked Delaware Valley to consent to a further postponement of the implementation date to January 1, 1983. The Commonwealth argued that the United States Environmental Protection Agency had recommended a type of emission analyzer different from the one required under the consent decree, but at that time no manufacturer had produced even a prototype of such machinery.

After extensive negotiations over this extension request, the parties failed to reach an agreement. The Commonwealth then filed a motion asking the District Court to grant the second extension and delay the starting date of the I/M program until January 1, 1983. In response, Delaware Valley sought to have the court declare the Commonwealth to be in violation of the consent decree, and requested numerous modifications to the consent decree. On May 20, 1981, the court issued an order finding the Commonwealth in violation of the decree, denying the motion for a further extension, and denying the modifications submitted by Delaware Valley. App. 25a-28a. On June 16, the court denied the Commonwealth’s motion for reconsideration, but approved May 1, 1982, as the new deadline for implementation of the I/M program. Id., at 44a-49a. The Commonwealth appealed both the May 20 and June 16 orders, both of which were affirmed by the Court of Appeals. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 674 F. 2d 976 (CA3), cert. denied, 459 U. S. 905 (1982).

Phase V. Following the District Court’s order of June 16, the Pennsylvania General Assembly enacted a statute, H. B. 456, over the Governor’s veto, which prohibited the expenditure of state funds by the Executive Branch for the implementation of the I/M program. Act of Oct. 5, 1981, No. 99, 1981 Pa. Laws 4. PennDOT and the remainder of the Executive Branch promptly ceased all activities related to implementing the I/M program, except for publication of the final regulations establishing specifications for the emissions analysis equipment to be used by garage owners wishing to participate as inspection locations. 11 Pa. Bull. 3519 (Oct. 10, 1981).

The Commonwealth moved to stay implementation of the consent decree in light of H. B. 456. Delaware Valley opposed that motion, and sought to have the court declare the Commonwealth in contempt and apply sanctions. The court denied the Commonwealth’s motion for a stay and held the Commonwealth in civil contempt. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 533 F. Supp. 869 (ED Pa. 1982). As a sanction, the court ordered the United States Secretary of Transportation to refrain from approving any projects, or awarding any grants, for highways in the two areas covered by the consent decree, except for projects required for purposes of safety, mass transit, or air quality improvement. Id., at 884-885. Once again, the Commonwealth appealed, and once again, the Court of Appeals upheld the District Court’s orders. 678 F. 2d 470 (CA3), cert. denied, 459 U. S. 969 (1982).

Phase VI. After the filing of the consent decree, the city of Pittsburgh and several groups of Pennsylvania legislators attempted to intervene in the litigation. Delaware Valley successfully opposed all of these attempts. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 674 F. 2d 970 (CA3), stay denied, 458 U. S. 1125 (1982).

Phase VII. As noted above, a portion of the District Court’s contempt order prevented the United States Secretary of Transportation from authorizing the expenditure of any federal funds for federal highway projects in Pennsylvania that did not fall into certain categories. In late 1982, the United States approved seven projects for funding, certifying that they would either improve safety or improve air quality. These certifications were submitted to both Delaware Valley and the District Court. The court found that five of the projects did not qualify as exemptions under the terms of its prior order, and only approved two proposals for federal funding. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 551 F. Supp. 827 (ED Pa. 1982).

Phase VIII. On May 3, 1983, the Pennsylvania General Assembly finally passed legislation authorizing the Commonwealth to proceed with implementation of the I/M program, and the Governor signed the bill into law the next day. 75 Pa. Cons. Stat. §§4706-4707 (1984). Subsequently, Delaware Valley and the Commonwealth negotiated a new compliance schedule, under which the I/M program would begin by June 1, 1984. The District Court approved of this new schedule, and vacated its earlier contempt sanctions.

Phase IX. This phase includes work done by Delaware Valley in hearings before the Environmental Protection Agency, during which, inter alia, the Commonwealth unsuccessfully sought that agency’s approval of an I/M program covering a smaller geographic area.

Delaware Valley then sought attorney’s fees and costs for the work performed after issuance of the consent decree in 1978. App. 50a-86a. The District Court awarded Delaware Valley $209,813 in attorney’s fees and an additional $6,675.03 in costs. 581 F. Supp. 1412, 1433 (ED Pa. 1984). To calculate the legal fee award, the District Court first determined:

“[T]he number of hours reasonably necessary to perform the legal services for which compensation is sought. The reasonable number of hours is then multiplied by a reasonable hourly rate for the attorney providing the services, the latter being based on the court’s determination of the attorney’s reputation, status and type of activity for which the attorney is seeking compensation. The sum of the two figures is the ‘lodestar’ which can then be adjusted upward or downward based on the contingency of success, and the quality of an attorney’s work. In all instances plaintiffs have the burden of establishing entitlement to the award claimed and any adjustment to the 'lodestar/” Id., at 1419 [citations omitted].

The court used three separate hourly rates in making its award. Work which the court found to be “most difficult” was compensated at an hourly rate of $100. For work that could have been done “by an attorney working at the associate level,” the hourly rate was set at $65. And for work “which required little or no legal ability,” the court allowed an hourly rate of $25. Id., at 1422.

For the most part, the hours for which Delaware Valley sought compensation were those spent on the postdecree litigation itself. In Phases II and IX, however, Pennsylvania objected that Delaware Valley was seeking compensation for work done in only tangentially related state and federal administrative proceedings. The District Court rejected this argument, and found that because the proposed regulations would have affected Delaware Valley’s rights under the consent decree, it had a unique interest in the proceedings that made its work sufficiently related to the litigation to be com-pensable. See id., at 1423, 1429-1430.

After determining the “lodestar” amounts for all phases of the litigation, the court next considered Delaware Valley’s request for “multipliers” to adjust these figures for “the contingent nature of the case, the quality of the work performed and the results obtained.” Id., at 1431, citing Hensley v. Eckerhart, 461 U. S. 424, 434-435 (1983). Given that the case involved new legal theories with little precedent, and that Delaware Valley was forced to go up against both the Federal Government and the Commonwealth of Pennsylvania to obtain the consent decree initially and then to protect it from being overturned, the court found “[t]he contingent nature of [Delaware Valley’s] success [to have] been apparent throughout this litigation.” 581 Supp., at 1431. The court also found that Delaware Valley’s work during Phase V was “superior,” and that an “[a]n increase based on the quality of work which culminated in an outstanding result is fully justified.” Ibid, (citation omitted).

Accordingly, the District Court applied a multiplier of two to the awards in Phases IV, V, and VII to reflect the low likelihood of success Delaware Valley faced in those stages of the litigation. In addition, the court added a separate multiplier of two to Phase V to adjust the lodestar for the high quality of representation provided in that phase. The court’s final calculation of the fee award for each of the nine phases was as follows:

Multiplier Total Lodestar

Phase I $ 4,478.50 $ 4,478.50

Phase II 1,722.50 1.722.50 I

Phase III 1,745.00 1,745.00 I

Phase IV 36.711.50 2 73,423.00

Phase V 27.372.50 4 109,490.00

Phase I — I 1,820.00 1,820.00

Phase hH H 5.370.50 2 10,741.00

Phase I — I H 1,560.00 1,560.00

Phase 1,453.00 1,453.00

The Court of Appeals for the Third Circuit affirmed. 762 F. 2d 272 (1985). The court analogized § 304(d) of the Clean Air Act, which provides for counsels’ fees, to other statutory-attorney’s fee provisions, and held that “the jurisprudence regarding the calculation of reasonable attorneys fees developed in connection with other attorneys fees statutes — particularly [42 U. S. C.] §1988 — is applicable to cases brought pursuant to § 304(d).” 762 F. 2d, at 275.

The court affirmed the award of fees for time spent commenting on the Commonwealth’s proposed regulations in Phase II for the reasons stated by the District Court. Id., at 276-277. The Court of Appeals also agreed that the fee award for the time devoted by Delaware Valley in Phase IX was proper “because adoption of the state plan modification would have impaired the rights won by [Delaware Valley] in the consent decree.” Id., at 277. The court took note of Webb v. Board of Ed. of Dyer County, 471 U. S. 234 (1985), in which this Court held that time spent on “optional administrative proceedings” may be compensable under § 1988 if the work was “both useful and of a type ordinarily necessary to advance the . . . litigation” to the point where the party succeeded. Id., at 243. The Court of Appeals found that the work of counsel in Phases II and IX “was useful and necessary for securing full enforcement of the decree,” and that the District Court’s fee awards for these two phases were consistent with Webb. 762 F. 2d., at 277, n. 7.

With respect to the use of multipliers, the Court of Appeals concluded that “this was The rare case where the fee applicant offer[ed] specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.”’” Id., at 280, quoting Blum v. Stenson, 465 U. S. 886, 899 (1984). The court also approved the use of “contingency” multipliers to compensate Delaware Valley for the risk of not prevailing. The court stated:

“Unlike Blum, [Delaware Valley] specifically identified the risks inherent in this litigation in its brief to the district court and, although the Supreme Court considers it an open question whether contingency of success can properly justify a lodestar increase, we have resolved the question in this court. See Hall v. Borough of Roselle, 747 F. 2d 838 (3d Cir.1984); Lindy [Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp.], 540 F. 2d [102,] 117 [(CA3 1976) (en banc)].” 762 F. 2d, at 282.

The court also rejected the Commonwealth’s arguments that the District Court failed to make specific findings of fact in awarding the multipliers, and that the court abused its discretion in determining the size of the multipliers. Ibid. We granted certiorari, 474 U. S. 815 (1985), and now affirm in part and reverse in part.

I — I I — I

Section 304(d) of the Clean Air Act, 84 Stat. 1706, 42 U. S. C. § 7604(d), provides, in pertinent part, as follows:

‘The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. ”

The Commonwealth argues that the plain language of the statute clearly limits the award of fees to “costs of litigation” for “action[s] brought” under the Act, and that the lower courts erred in awarding attorney’s fees for Delaware Valley’s activities in Phases II and IX, both of which involved the submission of comments on draft regulations to administrative agencies. The United States echoes these assertions, and contends that the “actions” contemplated by § 304(d) are judicial actions, not administrative proceedings. We reject these limiting constructions on the scope of § 304(d).

Although it is true that the proceedings involved in Phases II and IX were not “judicial” in the sense that they did not occur in a courtroom or involve “traditional” legal work such as examination of witnesses or selection of jurors for trial, the work done by counsel in these two phases was as necessary to the attainment of adequate relief for their client as was all of their earlier work in the courtroom which secured Delaware Valley’s initial success in obtaining the consent decree. This case did not involve a single tortious act by the Commonwealth that resulted in a discrete injury to Delaware Valley, nor was the harm alleged the kind that could be remedied by a mere award of damages or the entry of declaratory relief. Instead, Delaware Valley filed suit to force the Commonwealth to comply with its obligations under the Clean Air Act to develop and implement an emissions inspection and maintenance program covering 10 counties surrounding two major metropolitan areas. To this end, the consent decree provided detailed instructions as to how the program was to be developed and the specific dates by which these tasks were to be accomplished.

Protection of the full scope of relief afforded by the consent decree was thus crucial to safeguard the interests asserted by Delaware Valley; and enforcement of the decree, whether in the courtroom before a judge, or in front of a regulatory agency with power to modify the substance of the program ordered by the court, involved the type of work which is properly compensable as a cost of litigation under § 304. In a case of this kind, measures necessary to enforce the remedy ordered by the District Court cannot be divorced from the matters upon which Delaware Valley prevailed in securing the consent decree.

Several courts have held that, in the context of the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. § 1988, postjudgment monitoring of a consent decree is a com-pensable activity for which counsel is entitled to a reasonable fee. See, e. g., Garrity v. Sununu, 752 F. 2d 727, 738-739 (CA1 1984); Bond v. Stanton, 630 F. 2d 1231, 1233 (CA7 1980); Miller v. Carson, 628 F. 2d 346, 348 (CA5 1980); Northcross v. Board of Ed. of Memphis City Schools, 611 F. 2d 624, 637 (CA6 1979), cert. denied, 447 U. S. 911 (1980). Although § 1988 authorizes fees in “any action or proceeding” brought to enforce the Civil Rights Acts, and § 304(d) applies only to “any action” brought under the Clean Air Act, this distinction is not a sufficient indication that Congress intended § 304(d) to apply only to judicial, and not administrative, proceedings.

First, in several instances in the legislative history of this section, Congress used the words “action” and “proceeding” interchangeably. See, e. g., S. Rep. No. 91-1196, p. 37 (1970); 1 Legislative History of the Clean Air Amendments of 1970 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-18, p. 136 (1974) (Senate Consideration of the Report of the Conference Committee, Dec. 18, 1970) (Leg. Hist.). The lack of the phrase “or proceedings” on the face of § 304(d) is not necessarily indicative of the intended scope of the section.

Second, and more importantly, the purposes behind both § 304(d) and § 1988 are nearly identical, which lends credence to the idea that they should be interpreted in a similar manner. Northcross v. Memphis Board of Ed., 412 U. S. 427, 428 (1973). Section 1988 was enacted to insure that private citizens have a meaningful opportunity to vindicate their rights protected by the Civil Rights Acts. Hensley v. Eckerhart, 461 U. S., at 429. See S. Rep. No. 94-1011, p. 2 (1976). “The effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens,” and unless reasonable attorney’s fees could be awarded for bringing these actions, Congress found that many legitimate claims would not be redressed. H. R. Rep. No. 94-1568, p. 1 (1976).

Similarly, § 304(a) authorizes private citizens to sue any person violating the Clean Air Act, and § 304(d) provides for reasonable attorney’s fees whenever appropriate. Congress enacted § 304 specifically to encourage “citizen participation in the enforcement of standards and regulations established under this Act,” S. Rep. No. 91-1196, p. 36 (1970), and intended the section “to afford . . . citizens . . . very broad opportunities to participate in the effort to prevent and abate air pollution.” 1 Leg. Hist., p. 138 (SenateConsideration of the Report of the Conference Committee, Dec. 18, 1970) (remarks of Sen. Eagleton). Congress found that “Government initiative in seeking enforcement under the Clean Air Act has been restrained,” S. Rep. No. 91-1196, at 36, and urged the courts to “recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the courts should award costs of litigation to such party.” Id., at 38.

Given the common purpose of both § 304(d) and § 1988 to promote citizen enforcement of important federal policies, we find no reason not to interpret both provisions governing attorney’s fees in the same manner. We hold, therefore, that the fact that the work done by counsel in Phases II and IX did not occur in the context of traditional judicial litigation does not preclude an award of reasonable attorney’s fees under § 304(d) for the work done during these portions of the present action.

This conclusion is consistent with our opinion in Webb v. Board of Ed. of Dyer County, 471 U. S. 234 (1985). There, we noted that for the time spent pursuing optional administrative proceedings properly to be included in the calculation of a reasonable attorney’s fee, the work must be “useful and of a type ordinarily necessary” to secure the final result obtained from the litigation. Id., at 243. Application of this standard is left to the discretion of the district court. Id., at 243-244.

Here, the District Court found that, as for Phase II, Delaware Valley had a unique interest in the proposed regulation “based on a desire to ensure compliance with the consent decree and to protect [its] rights thereunder. The usefulness of [Delaware Valley’s] comments was manifested in the revisions that were made to the original regulations.” 581 F. Supp., at 1423. Similarly, the court found that counsel’s work during Phase IX helped to protect the relief awarded under the consent decree, as any modification of the I/M program by the Environmental Protection Agency would have adversely affected Delaware Valley’s rights under the decree. Id., at 1430. We agree that participation in these administrative proceedings was crucial to the vindication of Delaware Valley’s rights under the consent decree and find that compensation for these activities was entirely proper and well within the “zone of discretion” afforded the District Court. Hensley, supra, at 442 (Brennan, J., concurring in part and dissenting in part). We thus affirm the award of fees for work done in Phases II and IX.

I — I HH h — (

A

It is well established that, under the American Rule, “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). There are exceptions to this principle, the major one being congressional authorization for the courts to require one party to award attorney’s fees to the other. There are over 100 separate statutes providing for the award of attorney’s fees; and although these provisions cover a wide variety of contexts and causes of action, the benchmark for the awards under nearly all of these statutes is that the attorney’s fee must be “reasonable.”

Courts have struggled to formulate the proper measure for determining the “reasonableness” of a particular fee award. One method, first employed by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (1974), involved consideration of 12 factors. Johnson was widely followed by other courts, and was cited with approval by both the House and the Senate when § 1988 was enacted into law. H. R. Rep. No. 94-1558, p. 8 (1976); S. Rep. No. 94-1011, p. 6 (1976).

This approach required trial courts to consider the elements that go into determining the propriety of legal fees and was intended to provide appellate courts with more substantial and objective records on which to review trial court determinations. See Johnson, supra, at 717. This mode of analysis, however, was not without its shortcomings. Its major fault was that it gave very little actual guidance to district courts. Setting attorney’s fees by reference to a series of sometimes subjective factors placed unlimited discretion in trial judges and produced disparate results.

For this reason, the Third Circuit developed another method of calculating “reasonable” attorney’s fees. This method, known as the “lodestar” approach, involved two steps. First, the court was to calculate the “lodestar,” determined by multiplying the hours spent on a case by a reasonable hourly rate of compensation for each attorney involved. Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F. 2d 161, 167 (CA3 1973) (Lindy I). Second, using the lodestar figure as a starting point, the court could then make adjustments to this figure, in light of “(1) the contingent nature of the case, reflecting the likelihood that hours were invested and expenses incurred without assurance of compensation; and (2) the quality of the work performed as evidenced by the work observed, the complexity of the issues and the recovery obtained.” Merola v. Atlantic Richfield Co., 515 F. 2d 165, 168 (CA3 1975); Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F. 2d 102, 117 (CA3 1976) (Lindy II). This formulation emphasized the amount of time expended by the attorneys, and provided a more analytical framework for lower courts to follow than the unguided “factors” approach provided by Johnson. On the other hand, allowing the courts to adjust the lodestar amount based on considerations of the “riskiness” of the lawsuit and the quality of the attorney’s work could still produce inconsistent and arbitrary fee awards.

We first addressed the question of the proper manner in which to determine a “reasonable” attorney’s fee in Hensley v. Eckerhart, 461 U. S. 424 (1983). We there adopted a hybrid approach that shared elements of both Johnson and the lodestar method of calculation. “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services.” 461 U. S., at 433. To this extent, the method endorsed in Hensley follows the Third Circuit’s description of the first step of the lodestar approach. Moreover, we went on to state: “The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward. ...” Id., at 434. We then took a more expansive view of what those “other considerations” might be, however, noting that “[t]he district court also may consider [the] factors identified in Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 717-719 (CA5 1974), though it should note that many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.” Id., at 434, n. 9 (citation omitted).

We further refined our views in Blum v. Stenson, 465 U. S. 886 (1984). Blum restated that the proper first step in determining a reasonable attorney’s fee is to multiply “the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Id., at 888. We emphasized, however, that the figure resulting from this calculation is more than a mere “rough guess” or initial approximation of the final award to made. Instead, we found that “[w]hen . . . the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee” to which counsel is entitled. Id., at 897 (emphasis added).

Blum also limited the factors which a district court may consider in determining whether to make adjustments to the lodestar amount. Expanding on our earlier finding in Hensley that many of the Johnson factors “are subsumed within the initial calculation” of the lodestar, we specifically held in Blum that the “novelty [and] complexity of the issues,” “the special skill and experience of counsel,” the “quality of representation,” and the “results obtained” from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award. 465 U. S., at 898-900. Although upward adjustments of the lodestar figure are still permissible, id., at 901, such modifications are proper only in certain “rare” and “exceptional” cases, supported by both “specific evidence” on the record and detailed findings by the lower courts. See id., at 898-901.

A strong presumption that the lodestar figure — the product of reasonable hours times a reasonable rate — represents a “reasonable” fee is wholly consistent with the rationale behind the usual fee-shifting statute, including the one in the present case. These statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client. Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws. Hence, if plaintiffs, such as Delaware Valley, find it possible to engage a lawyer based on the statutory assurance that he will be paid a “reasonable fee,” the purpose behind the fee-shifting statute has been satisfied.

Moreover, when an attorney first accepts a case and agrees to represent the client, he obligates himself to perform to the best of his ability and to produce the best possible results commensurate with his skill and his client’s interests. Calculating the fee award in a manner that accounts for these factors, either in determining the reasonable number of hours expended on the litigation or in setting the reasonable hourly rate, thus adequately compensates the attorney, and leaves very little room for enhancing the award based on his post-engagement performance. In short, the lodestar figure includes most, if not all, of the relevant factors constituting a “reasonable” attorney’s fee, and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance.

B

With this teaching from our prior cases in mind, we sustain the Commonwealth’s contention that the lower courts erred in increasing the fee award to Delaware Valley in Phase V based on the “superior quality” of counsel’s performance. Relying on the statement in Blum that an upward adjustment may be justified in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional,” the Third Circuit affirmed both the District Court’s findings concerning the “superior quality” of Delaware Valley’s counsel’s work in Phase V, and the “outstanding result” obtained in this phase and its holding that an increase in this portion of the lodestar by a factor of two was appropriate. 762 F. 2d, at 280-282.

We cannot agree. Because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate, the overall quality of performance ordinarily should not be used to adjust the lodestar, thus removing any danger of “double counting.”

Furthermore, we are unpersuaded that the lodestar amount determined for Phase V in this case did not fully reflect the quality and competence of the legal services rendered by Delaware Valley’s lawyers. For this portion of the litigation, counsel sought compensation for approximately 620 hours of work. 581 F. Supp., at 1427. Of these, the District Court allowed compensation for 324 hours. The District Court’s elimination of a large number of hours on the grounds that they were unnecessary, unreasonable, or unproductive is not supportive of the court’s later conclusion that the remaining hours represented work of “superior quality.”

We also note that of the 324 hours compensated, 26 hours were compensated at $25 per hour, 88 hours were billed at an hourly rate of $65, and the remaining 210 hours were paid at $100 per hour. Id., at 1427-1428. By the court’s own definition, the $25 rate was applied to work “which required little or no legal ability,” and the $65 rate was proper for work “that could have been done by an attorney working at the associate level.” Id., at 1422. Given that nearly one-third of all of the hours reasonably spent on this phase were not compensated at the hourly rate for work which the court found to be “most difficult,” it is hard to see what made the quality of representation for those hours so “superior” that it was not reflected in the hourly rate used to determine the lodestar amount. This conclusion is reinforced by the fact that the Third Circuit expressly found that the $100 hourly rate for the attorney compensated for the 210 hours was “plainly appropriate” given that he was an “inexperienced attorne[y]” without “any prior significant litigation experience.” 762 F. 2d, at 279, n. 10. See also 581 F. Supp., at 1422 (District Court set fees based on evaluation of “the status, reputation and experience of the individual attorneys who performed the activity”).

In sum, viewing the evidence submitted by Delaware Valley to support its petition for attorney’s fees, there is no indication as to why the lodestar did not provide a reasonable fee award reflecting the quality of representation provided during Phase V of the litigation. Clearly, Delaware Valley was able to obtain counsel without any promise of reward for extraordinary performance. Furthermore, Delaware Valley presented no specific evidence as to what made the results it obtained during this phase so “outstanding,” nor did it provide any indication that the lodestar figure for this portion of the case was far below awards made in similar cases where the court found equally superior quality of performance. Finally, neither the District Court nor the Court of Appeals made detailed findings as to why the lodestar amount was unreasonable, and in particular, as to why the quality of representation was not reflected in the product of the reasonable number of hours times the reasonable hourly rate. In the absence of such evidence and such findings, we find no reason to increase the fee award in Phase V for the quality of representation.

IV

There remains the question of upward adjustment, by way of multipliers or enhancement of the lodestar, based on the likelihood of success, or to put it another way, the risk of loss. This is the question that we left open in Blum and on which the Courts of Appeals are not entirely in accord. We are of the view that our resolution of the issue would be benefited by reargument and hence we do not decide it now. Accordingly, an order will issue restoring the case to the argument docket insofar as it raises the question whether attorney’s fees chargeable to a losing defendant under the Clean Air Act and the comparable statutes may be enhanced based on the risk of loss, and if so, to what extent.

The judgment below is therefore affirmed insofar as it upheld the award of attorney’s fees for the work done in Phases II and IX and, except for the multiplier for risk, is otherwise reversed.

It is so ordered.

Justice Blackmun,

.with whom Justice Marshall joins, and with whom Justice Brennan joins as to Part II, concurring in part and dissenting in part.

HH

I dissent from the piecemeal adjudication of the issues in this case. I would set the entire case, and not just a part of it, for reargument next Term. This rush to judgment on certain issues will serve only to confuse the federal courts until the entire case is decided. But the Court insists on covering the merits in part, and so I turn to them.

I — I HH

I join only Parts I and II ox the Court s opinion. In Part III, the Court purports to follow Blum v. Stenson, 465 U. S. 886 (1984), in which we held that an adjustment for quality was available “in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was ‘exceptional.’” Id., at 899, citing Hensley v. Eckerhart, 461 U. S. 424, 435 (1983). The Court today, however, improperly heightens the showing required to the point where it may be virtually impossible for a plaintiff to meet. Compare Blum, supra, at 899, with ante, at 567-568.

Although the District Court’s decision was issued before Blum, its quality adjustment in Phase V was in full accord with the standards subsequently laid down in Blum. Compare 581 F. Supp. 1412, 1431 (ED Pa. 1984), with 465 U. S., at 899. The proper standard of review of an attorney’s fee award is abuse of discretion. Evans v. Jeff D., 475 U. S. 717, 742-743 (1986); Blum, supra, at 896. I do not think the District Court abused its discretion in multiplying by two the lodestar for Phase V in order to adjust for quality. If the majority applied the proper, deferential standard of review on the quality issue rather than substituting its judgment for that of the District Court, see ante, at 566-567, it may have reached the same result as I do.

       This phase also includes work done by Delaware Valley in related state-court litigation. Burd v. Pennsylvania Dept. of Transportation, 66 Pa. Commw. 129, 443 A. 2d 1197 (1982), rev’d on other grounds sub nom. Scanlon v. Pennsylvania Dept. of Transportation, 502 Pa. 577, 467 A. 2d 1108 (1983), was brought by a group of state legislators to challenge the Executive Branch’s authority to implement an I/M program. On appeal, Delaware Valley submitted an amicus brief supporting the Commonwealth. The Pennsylvania Supreme Court determined that state officials had no authority to enter into the federal consent decree in 1978, held the decree to be a “nullity,” id., at 590, 467 A. 2d, at 1115, and remanded the case to the Commonwealth Court, which later enjoined PennDOT from following the terms of the decree. The Commonwealth then moved to vacate the consent decree pursuant to Federal Rule of Civil Procedure 60(b). The District Court denied the motion, and the Court of Appeals affirmed. Delaware Valley Citizens’ Council for Clean Air v. Commonwealth, 755 F. 2d 38 (CA3), cert. denied, 474 U. S. 819 (1985).

       In determining the lodestar amounts, the District Court eliminated more than one-third of all of the hours submitted by Delaware Valley. Some of these hours were eliminated because they were not documented in sufficient detail. 581 F. Supp., at 1420-1421. Additional hours were excluded because the court disallowed all time spent by attorneys in preparing for or in attending hearings in which another attorney for Delaware Valley was the principal advocate. Id., at 1421. The court also denied a certain number of hours for activities in related proceedings that it found were not necessary to protect Delaware Valley’s rights under the consent decree. Id., at 1430. Finally, a significant number of hours were eliminated based on the court’s conclusion that the time spent on the particular activity was “excessive,” or that a less amount of time was “reasonable.” See e. g., id., at 1423, 1425, 1429.

       The District Court also awarded Delaware Valley an additional $3,380 in legal fees for the work done preparing the fee petition itself. 581 F. Supp., at 1431.

       Judge Becker dissented from the court’s affirmance of the award of multipliers. The risk of not prevailing in Phases IV and VII was “simply insufficient to justify the very substantial multiplier awarded by the district court,” because in both phases, the Commonwealth had the burden of proof in seeking to modify the consent decree. 762 F. 2d, at 282, n. 12. As for the multiplier of four used in Phase V, Judge Becker concluded that, “even assuming an award of quality and contingency multipliers is appropriate . . . , the multipliers must be recalculated because the case was not so very rare as to justify in light of Blum, the award of this extraordinary multiplier.” Ibid, (citations omitted).

       We express no judgment on the question whether an award of attorney’s fees is appropriate in federal administrative proceedings when there is no connected court action in which fees are recoverable.

       In addition to this statutory exception, courts traditionally have recognized three other other exceptions to the “American Rule.” First, courts can enforce their own orders by assessing attorney’s fees for the wilfull violation of a court order. Alyeska, 421 U. S., at 258. Second, courts are empowered to award fees against a losing party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Id., at 258-259. And finally, a court’s equitable powers allow it to award fees in commercial litigation to plaintiffs who recovered a “common fund” for themselves and others through securities or antitrust litigation. Id., at 257. None of these situations are involved in the present case.

       The 12 factors are: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F. 2d, at 717-719. These factors were taken from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106 (1980).


author:
      Justice Powell Chief Justice Burger,
      Justice Stevens, Justice Blackmun,

text:
    ROSE, WARDEN v. CLARK
    No. 84-1974.
    Argued March 24, 1986
    Decided July 2, 1986

      Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 584. Stevens, J., filed an opinion concurring in the judgment, post, p. 585. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 590.

      W. J. Michael Cody, Attorney General of Tennessee, argued the cause for petitioner. With him on the briefs were Jerry L. Smith, Deputy Attorney General, and Kymberly Lynn Anne Hattaway, Assistant Attorney General.

      Paul J. Larkin, Jr., argued the cause for the United States as amicus curióte urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Deputy Solicitor General Frey.

      Scott Daniel argued the cause and filed a brief for respondent.

        John K. Van de Kamp, Attorney General of California, Steve White, Chief Assistant Attorney General, and Ronald E. Niver and David D. Salmon, Deputy Attorneys General, filed a brief for the State of California as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neubome and Charles S. Sims; and for the National Association of Criminal Defense Lawyers et al. by Kim Robert Fawcett and Stephen A. Saltzburg.

   Justice Powell

delivered the opinion of the Court.

This case presents the question whether the harmless-error standard of Chapman v. California, 386 U. S. 18 (1967), applies to jury instructions that violate the principles of Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985).

On December 30, 1978, Charles Browning and Joy Faulk were shot to death while they sat in Browning’s pickup truck in a remote area of Rutherford County, Tennessee. Respondent Stanley Clark, Faulk’s former boyfriend, was charged with the murders.

The evidence introduced at trial showed that Browning, Faulk, and Faulk’s two young children (aged 6 and 3) had been driving in Rutherford County on the night of the murders. According to the older child, another vehicle followed Browning’s truck for about an hour. Browning pulled his truck into a private driveway, apparently to let the other ve-hide pass. The driver of the second vehide then pulled in behind Browning, thereby blocking any exit. The driver left his vehide, walked up to the cab of Browning’s truck, and fired four shots at point-blank range. One shot struck Browning in the head, two others struck Faulk in the head, and the fourth struck Faulk in the left shoulder. The killer left the scene in his vehicle. Both Browning and Faulk died.

Faulk’s children, who had not been shot, went for help, telling a local resident that “Clicker” (the nickname by which the children knew respondent) had shot Browning and their mother. Earlier that night, police had seen respondent following Browning’s truck. Police soon located respondent, but apprehended him only after a high-speed chase. Police found the murder weapon, a .25-caliber pistol that respondent had borrowed from a friend, near respondent’s home. At trial, the State relied on the foregoing evidence and on evidence showing that respondent and Joy Faulk had a stormy love affair that Faulk ended in the fall of 1978. Several times after their breakup, respondent threatened to kill Faulk if he ever found her with another man.

Respondent offered two lines of defense. First, he contended that Sam Faulk, Joy’s ex-husband, killed the victims because of a dispute concerning custody of the two Faulk children. The State rebutted this contention by introducing evidence that no such dispute existed, and that Sam Faulk was elsewhere when the murders were committed. Second, respondent argued that he was either insane or incapable of forming the requisite criminal intent. To support this argument, respondent introduced evidence that he was suffering from amnesia and could not remember the events of the night of the murders. In addition, some testimony suggested that respondent had been drinking heavily the entire day before the murders. Finally, two defense psychiatrists testified that respondent was legally insane at the time the murders were committed because his depression concerning his recent breakup with Joy Faulk made it impossible for him to conform his conduct to the law.

At the close of trial, the court instructed the jury on the elements of both first- and second-degree murder. Under Tennessee law, first-degree murder requires proof of premeditation and deliberation, while second-degree murder requires proof of malice. The court’s instructions defined malice as “an intent to do any injury to another, a design formed in the mind of doing mischief to another.” App. 186. Malice did not require proof of planning or premeditation; a killing “upon a sudden impulse of passion” sufficed if committed with intent to harm another. Id., at 187. The court then charged the jury:

“All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable . . . doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.” Ibid.

The jury found respondent guilty of first-degree murder for killing Faulk and of second-degree murder for killing Browning.

The Tennessee Court of Criminal Appeals affirmed the convictions, rejecting respondent’s argument that the jury instructions had impermissibly shifted the burden of proof as to malice. Respondent then sought habeas corpus relief in the Middle District of Tennessee. The District Court held that the malice instruction had violated respondent’s right to have his guilt proved beyond a reasonable doubt, as that right was defined in Sandstrom v. Montana. The court went on to find that the error could not be deemed harmless because respondent had “relied upon a mens rea defense” in contesting his guilt. 611 F. Supp. 294, 302 (1983).

The Court of Appeals for the Sixth Circuit affirmed. The court agreed that the malice instruction was unconstitutional under Sandstrom. Turning to the question whether the error was harmless, the court reasoned that because respondent contested malice at his trial, an erroneous burden-shifting instruction could not be harmless under governing precedent. App. to Pet. for Cert. A-5 (citing Engle v. Koehler, 707 F. 2d 241, 246 (CA6 1983), aff’d by an equally divided Court, 466 U. S. 1 (1984)). The court reached this conclusion “despite the substantial evidence of petitioner’s guilt,” and added:

“Were we writing on a clean slate, we would direct our inquiry to that suggested by Justice Powell (dissenting) in Connecticut v. Johnson, 460 U. S. at 97 n. 5:
“ ‘the inquiry is whether the evidence is so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption.’
“If that were the question in this case ... we might be able to respond in the affirmative.” App. to Pet. for Cert. A-6.

The court nevertheless affirmed the order granting habeas corpus relief. We granted certiorari limited to the question whether the Court of Appeals’ harmless-error analysis was correct. 474 U. S. 816 (1985).

H-<

A

In Chapman v. California, 386 U. S. 18 (1967), this Court rejected the argument that errors of constitutional dimension necessarily require reversal of criminal convictions. And since Chapman, “we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). That principle has been applied to a wide variety of constitutional errors. E. g., id., at 684 (failure to permit cross-examination concerning witness bias); Rushen v. Spain, 464 U. S. 114, 118 (1983) (per curiam) (denial of right to be present at trial); United States v. Hasting, 461 U. S. 499, 508-509 (1983) (improper comment on defendant’s failure to testify); Moore v. Illinois, 434 U. S. 220, 232 (1977) (admission of witness identification obtained in violation of right to counsel); Milton v. Wainwright, 407 U. S. 371 (1972) (admission of confession obtained in violation of right to counsel); Chambers v. Maroney, 399 U. S. 42, 52-53 (1970) (admission of evidence obtained in violation of the Fourth Amendment). See also Hopper v. Evans, 456 U. S. 605, 613-614 (1982) (citing Chapman and finding no prejudice from trial court’s failure to give lesser included offense instruction). Our application of harmless-error analysis in these cases has not reflected a denigration of the constitutional rights involved. Instead, as we emphasized earlier this Term:

“The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U. S. 225, 230 (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle of Harmless Error 50 (1970) (‘Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it’).” Delaware v. Van Arsdall, supra, at 681.

Despite the strong interests that support the harmless-error doctrine, the Court in Chapman recognized that some constitutional errors require reversal without regard to the evidence in the particular case. 386 U. S., at 23, n. 8, citing Payne v. Arkansas, 356 U. S. 560 (1958) (introduction of coerced confession); Gideon v. Wainwright, 372 U. S. 335 (1963) (complete denial of right to counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (adjudication by biased judge). This limitation recognizes that some errors necessarily render a trial fundamentally unfair. The State of course must provide a trial before an impartial judge, Turney v. Ohio, supra, with counsel to help the accused defend against the State’s charge, Gideon v. Wainwright, supra. Compare Holloway v. Arkansas, 435 U. S. 475, 488-490 (1978), with Cuyler v. Sullivan, 446 U. S. 335, 348-350 (1980). Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, see Powell v. Alabama, 287 U. S. 45 (1932), and no criminal punishment may be regarded as fundamentally fair. Harmless-error analysis thus presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury. See Delaware v. Van Arsdall, supra, at 681 (constitutional errors may be harmless “in terms of their effect on the factfinding process at trial”) (emphasis added); Chapman, supra, at 24 (error is harmless if, beyond a reasonable doubt, it “did not contribute to the verdict obtained”) (emphasis added).

Similarly, harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury. We have stated that “a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict. . . regardless of how overwhelmingly the evidence may point in that direction.” United States v. Martin Linen Supply Co., 430 U. S. 564, 572-573 (1977) (citations omitted). Accord, Carpenters v. United States, 330 U. S. 395, 408 (1947). This rule stems from the Sixth Amendment’s clear command to afford jury trials in serious criminal cases. See Duncan v. Louisiana, 391 U. S. 145 (1968). Where that right is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.

We have emphasized, however, that while there are some errors to which Chapman does not apply, they are the exception and not the rule. United States v. Hasting, supra, at 509. Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van Arsdall, 475 U. S., at 681; United States v. Hasting, 461 U. S., at 508-509.

B

Applying these principles to this case is not difficult. Respondent received a full opportunity to put on evidence and make argument to support his claim of innocence. He was tried by a fairly selected, impartial jury, supervised by an impartial judge. Apart from the challenged malice instruction, the jury in this case was clearly instructed that it had to find respondent guilty beyond a reasonable doubt as to every element of both first- and second-degree murder. See also n. 2, supra. Placed in context, the erroneous malice instruction does not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction. We therefore find that the error at issue here — an instruction that impermissibly shifted the burden of proof on malice — is not “so basic to a fair trial” that it can never be harmless. Cf. Chapman, 386 U. S., at 23.

The purpose behind the rule of Sandstrom v. Montana supports this conclusion. Sandstrom was a logical extension of the Court’s holding in In re Winship, 397 U. S. 358 (1970), that the prosecution must prove “every fact necessary to constitute the crime with which [the defendant] is charged” beyond a reasonable doubt. Id., at 364; see Sandstrom, 442 U. S., at 520, 523; Francis v. Franklin, 471 U. S., at 313. The purpose of that rule is to ensure that only the guilty are criminally punished. As the Court stated last Term in Francis v. Franklin, the rule “protects the ‘fundamental value determination of our society,’ given voice in Justice Harlan’s concurrence in Winship, that ‘it is far worse to convict an innocent man than to let a guilty man go free.’ ” Ibid., quoting Winship, supra, at 372 (Harlan, J., concurring). When the verdict of guilty reached in a case in which Sandstrom error was committed is correct beyond a reasonable doubt, reversal of the conviction does nothing to promote the interest that the rule serves.

Nor is Sandstrom error equivalent to a directed verdict for the State. When a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt. Connecticut v. Johnson, 460 U. S. 73, 96-97 (1983) (Powell, J., dissenting). In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury. See, e. g., Lamb v. Jernigan, 683 F. 2d 1332, 1342-1343 (CA11 1982), cert. denied, 460 U. S. 1024 (1983). In that event the erroneous instruction is simply superfluous: the jury has found, in Winship’s words, “every fact necessary” to establish every element of the offense beyond a reasonable doubt. See Connecticut v. Johnson, supra, at 97 (Powell, J., dissenting); Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L. J. 1325, 1388, n. 192 (1979).

No one doubts that the trial court properly could have instructed the jury that it could infer malice from respondent’s conduct. See Francis v. Franklin, supra, at 314-315; Ulster County Court v. Allen, 442 U. S. 140, 157-163 (1979). Indeed, in the many cases where there is no direct evidence of intent, that is exactly how intent is established. For purposes of deciding this case, it is enough to recognize that in some cases that inference is overpowering. See Hopper v. Evans, 456 U. S., at 613. It would further neither justice nor the purposes of the Sandstrom rule to reverse a conviction in such a case. We accordingly hold that Chapman’s harmless-error standard applies in cases such as this one.

I — I H-t 1 — 4

Although the Court of Appeals acknowledged that Sand-strom error might in some cases be harmless, its analysis of the issue cannot square with Chapman. The court concluded that a Sandstrom error could never be harmless where a defendant contests intent. App. to Pet. for Cert. A-5. But our harmless-error cases do not turn on whether the defendant conceded the factual issue on which the error bore. Rather, we have held that “Chapman mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless.” United States v. Hasting, 461 U. S., at 509, n. 7. The question is whether, “on the whole record . . . the error . . . [is] harmless beyond a reasonable doubt.” Id., at 510. See also Chapman, 386 U. S., at 24 (“[BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”); Connecticut v. Johnson, 460 U. S., at 97, n. 5 (Powell, J., dissenting) (in cases of Sandstrom error, “the inquiry is whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption”). Thus, the fact that respondent denied that he had “an intent to do any injury to another,” App. 186, does not dispose of the harmless-error question.

Although we “plainly have the authority” to decide whether, on the facts of a particular case, a constitutional error was harmless under the Chapman standard, we “do so sparingly.” United States v. Hasting, supra, at 510. The Court of Appeals has not yet applied Chapman to the facts of this case. We therefore remand to that court for determination of whether the error committed in this case was harmless beyond a reasonable doubt.

IV

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Chief Justice Burger,

concurring.

I join the Court’s opinion, although I see no need for remanding for application of harmless-error analysis.

The evidence in this case showed that respondent stalked the victims by car for about an hour. After trapping the victims’ truck in a private driveway, respondent fired four shots at point-blank range killing both victims. Two young girls, aged 3 arid 6, were in the truck and witnessed the slaying. Their mother was one of the victims. After the murder, respondent left the scene but was apprehended by the police after a high-speed chase. In my view, such evidence overwhelmingly demonstrates that respondent acted with malice.

Justice Stevens,

concurring in the judgment.

The Court correctly concludes that the harmless-error standard of Chapman v. California, 386 U. S. 18 (1967), applies to the erroneous jury instructions in this case. I do not agree, however, with the Court’s dictum regarding the nature of harmless-error analysis.

I

According to the Court, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Ante, at 579. This statement stands in sharp contrast with the Court’s analysis in Chapman itself.

The principal question presented in Chapman was “whether there can ever be harmless constitutional error,” 386 U. S., at 20. Without questioning the view that constitutional error is always sufficiently serious to create a presumption in favor of reversal, the Court refused “to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful.” Id., at 21. Far from announcing any general principle that harmless-error analysis is the rule rather than the exception, the Court stated its holding in this language: “We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id., at 22.

Thereafter in its opinion, the Court emphasized that the burden of showing that constitutional error is harmless is heavier than the burden of showing that ordinary trial error is harmless. The Court noted that “the original common-law harmless error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” Id., at 24. It then fashioned its constitutional rule by reference to its earlier decision in Fahy v. Connecticut, 375 U. S. 85 (1963), stating:

“There is little, if any, difference between our statement in Fahy v. Connecticut about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.” 386 U. S., at 24.

Rather than creating a broad, new presumption in favor of harmless-error analysis, then, Chapman merely rejected the notion that such analysis was always impermissible and articulated a rigorous standard for determining whether a presumptively prejudicial error could, in fact, be deemed harmless.

hH > — (

The Court’s statement about the “rule of harmless-error review, and the reasons for it, is neither an adequate explanation of our current case law nor a sound judgment about what harmless-error jurisprudence should be.

As the Court recognizes, harmless-error inquiry remains inappropriate for certain constitutional violations no matter how strong the evidence of guilt may be. Ante, at 577-578. See also Chapman, 386 U. S., at 23, n. 8. The Court suggests that the inapplicability of harmless error to these violations rests on concerns about reliability and accuracy, and that such concerns are the only relevant consideration in determining the applicability of harmless error. Ante, at 579. In fact, however, violations of certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial. Thus, racial discrimination in the selection of grand juries is intolerable even if the defendant’s guilt is subsequently established in a fair trial. Racial discrimination in the selection of a petit jury may require a new trial without any inquiry into the actual impact of the forbidden practice. The admission of a coerced confession can never be harmless even though the basic trial process was otherwise completely fair and the evidence of guilt overwhelming. In short, as the Court has recently emphasized, our Constitution, and our criminal justice system, protect other values besides the reliability of the guilt or innocence determination. A coherent harmless-error jurisprudence should similarly respect those values.

In addition to giving inadequate respect to constitutional values besides reliability, adopting a broad presumption in favor of harmless error also has a corrosive impact on the administration of criminal justice. An automatic application of harmless-error review in case after case, and for error after error, can only encourage prosecutors to subordinate the interest in respecting the Constitution to the ever-present and always powerful interest in obtaining a conviction in a particular case. It is particularly striking to compare the Court’s apparent willingness to forgive constitutional errors that redound to the prosecutor’s benefit with the Court’s determination to give conclusive effect to trivial errors that obstruct a defendant’s ability to raise meritorious constitutional arguments.

Both a proper respect for a range of constitutional values and the interest in an evenhanded approach to the administration of justice convince me that the Court’s dictum about a sweeping presumption in favor of harmless-error review is not only unnecessary, but also unsound.

I — I HH I — I

In this particular case, however, the primary constitutional value protected by our holdings in Sandstrom v. Montana, 442 U. S. 510 (1979), and Francis v. Franklin, 471 U. S. 307 (1985), is an accurate determination of the defendant’s guilt or innocence. In my opinion, this is also not the kind of error with such an inherently imprecise effect that harmless-error inquiry is ill advised. It follows that the Federal Constitution does not command a rule of automatic reversal, and that the Court of Appeals should review the entire record to determine whether it is able to declare a belief that the constitutional error was harmless beyond a reasonable doubt.

Accordingly, I concur in the judgment.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join, dissenting.

Stanley Clark was deprived of two rights: the right guaranteed by the Due Process Clause of the Fourteenth Amendment to compel the State of Tennessee to prove beyond a reasonable doubt every element of the crimes with which he was charged, and the right guaranteed by the Sixth Amendment to have a jury of his peers determine whether the State had met that burden. Today, the Court focuses entirely on the former right and disregards totally the latter. A reviewing court’s conclusion that the record would support a conviction by a properly instructed jury has no bearing on the question whether a defendant was denied the right to have the jury that actually tried him make that determination. “To conform to due process of law, [defendants are] entitled to have the validity of their convictions appraised on consideration of the case ... as the issues were determined in the trial court.” Cole v. Arkansas, 333 U. S. 196, 202 (1948). A trial that was fundamentally unfair at the time it took place, because the jury was not compelled to perform its constitutionally required role, cannot be rendered fundamentally fair in retrospect by what amounts to nothing more than an appellate review of the sufficiency of the evidence. I therefore dissent from the Court’s holding that harmless-error analysis should be applied.

I

Stanley Clark was indicted on charges of the first-degree murder of Joy Faulk and Charles Browning. He pleaded not guilty to both charges. At trial, Clark contested every element of the crime. He argued that he had not committed the killings, that he could not recall, due to amnesia, any event connected with the killings, and, alternatively, that he was incapable of forming any culpable intent due to mental illness and intoxication. Defense counsel’s opening statement and the testimony of psychiatric experts and persons close to Clark put the question whether Clark possessed the requisite mental state directly before the jury.

At the close of trial, the court instructed the jury that malice, “an intent to do any injury to another,” was a necessary element of first- as well as second-degree murder. App. 186. The trial court then instructed the jury, which for three days had heard testimony raising doubts about Clark’s capacity to form the requisite intent, that “if the State has proven beyond a reasonable doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted . . . .” Id., at 187. The trial court went on to instruct the jury that voluntary manslaughter is a killing without malice. Id., at 188.

The District Court found, and the Court of Appeals for the Sixth Circuit agreed, that the jury instructions were constitutionally infirm under Sandstrom v. Montana, 442 U. S. 510 (1979). App. to Pet. for Cert. A-l, A-7. The sole question before the Court is whether such error can ever be harmless. See ante, at 576. In Sandstrom, the Court held that burden-shifting jury instructions on the question of intent, like the instructions here, violate the due process requirement recognized in In re Winship, 397 U. S. 358 (1970), that a conviction is valid only if the State has proved beyond a reasonable doubt every element of the crime. 442 U. S., at 521. Thus, as the majority assumes, there was clear constitutional error in Clark’s trial, see ante, at 576, n. 5, and the question before the Court is only whether that error was harmless.

II

The harmless-error rule stems from this Court’s recognition that some trial errors are sufficiently tangential to the trial process that they fairly may be overlooked. Chapman v. California, 386 U. S. 18, 22 (1967). But the Court also has recognized the existence of a class of constitutional errors that “necessarily render a trial fundamentally unfair,” ante, at 577, and thus are not amenable to harmless-error analysis. “Harmless-error analysis,” according to the majority, “presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Ante, at 578. Thus, errors that deny a defendant “the basic trial process” can “never be harmless.” Ante, at 578, n. 6. The archetypal examples of such acts are denial of the right to counsel and trial before a biased judge. See ante, at 577-578; Gideon v. Wainwright, 372 U. S. 335 (1963); Tumey v. Ohio, 273 U. S. 510 (1927). The salient feature these examples share is that effective defense counsel and an impartial judge play central roles in the basic trial process. The Sixth and Fourteenth Amendments clearly establish the jury as an equally central entity. Cf. ante, at 578. What the Court’s opinion today fails to comprehend is that the instruction in this case interfered so fundamentally with the jury’s performance of its constitutionally mandated role that the error involved is analytically indistinguishable from those errors the Court finds inappropriate for harmless-error analysis.

The Framers chose to protect defendants, not primarily by regulating the substance of the criminal law, but by establishing certain trial procedures to be followed in a criminal case. See Underwood, The Thumb on the Scale of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L. J. 1299, 1317-1318 (1977). The jury’s central obligation under the Due Process Clause is to determine whether the State has proved each element of the offense charged beyond a reasonable doubt. See Sandstrom v. Montana, supra; In re Winship, supra. The Constitution assigns this function “solely to the jury.” Sandstrom, 442 U. S., at 523. This duty cannot be interfered with, see Ulster County Court v. Allen, 442 U. S. 140, 169 (1979) (Powell, J., dissenting), nor delegated to another entity. “Findings made by a judge cannot cure deficiencies in the jury’s finding as to the guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime. See Connecticut v. Johnson, 460 U. S. 73, 95, and n. 3 (1983) (Powell, J., dissenting).” Cabana v. Bullock, 474 U. S. 376, 384-385 (1986); see also Cole v. Arkansas, 333 U. S., at 202. The Constitution does not allow an appellate court to arrogate to itself a function that the defendant, under the Sixth Amendment, can demand be performed by a jury.

A jury that receives a constitutionally flawed, burden-shifting instruction on intent is, in effect, directed to return a verdict against the defendant. Connecticut v. Johnson, 460 U. S., at 84 (plurality opinion). Because a jury is the primary finder of fact, “ ‘a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict. . . regardless of how overwhelmingly the evidence may point in that direction.’ ” Ibid., quoting United States v. Martin Linen Supply Co., 430 U. S. 564, 572-573 (1977). The erroneous instruction invites the jury to abdicate its constitutional responsibility to decide for itself whether the State has proved every element of the offense beyond a reasonable doubt. It is likely that the jury will accept this invitation because “there is no reason to believe the jury would have deliberately undertaken the more difficult task” of evaluating the evidence of intent, when offered the opportunity simply to rely on a presumption, Sandstrom, 442 U. S., at 526, n. 13; Connecticut v. Johnson, 460 U. S., at 85 (plurality opinion). When a defendant contests the issue of intent, a reviewing court will rarely be capable of deciding whether the error contributed to the verdict: it will have no way of knowing how the jury treated the question of intent. See Sandstrom, 442 U. S., at 526; Ulster County Court v. Allen, 442 U. S., at 175-176 (Powell, J., dissenting).

The verdicts reached in this case aptly illustrate why harmless-error analysis is inappropriate in cases where a defendant contests the element of mens rea. Clark was charged with the first-degree murders of two people, who were together in a truck when they were killed. The State used the same evidence to prove that Clark killed Faulk as to prove that he killed Browning. Yet the jury found Clark guilty of the first-degree murder of Faulk and the second-degree murder of Browning. That the jury reached distinct verdicts shows that it focused closely on the question of Clark’s mental culpability, the precise issue on which the court gave the constitutionally defective charge. A reviewing court simply cannot determine whether this jury in fact relied on the flawed instruction. It certainly is possible that it did: perhaps the jury did not find sufficient intent to convict Clark of second-degree murder, and but for the presumption of malice would have convicted him of voluntary manslaughter, for which malice was not required. It is of no value to point to any evidence presented at trial of Clark’s intent; “[a]n erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence.” Connecticut v. Johnson, 460 U. S., at 85 (plurality opinion). The ordinary view is that a jury adheres to the instructions, Parker v. Randolph, 442 U. S. 62, 73 (1979) (plurality opinion), and there is no reason to believe that the “lay jury will know enough to disregard the judge’s bad law if in fact he misguides them.” Bollenbach v. United States, 326 U. S. 607, 613-614 (1946).

It is true that “[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” Ante, at 580. But that truism is beside the point here, where the only fact that the jury was required to find in order to trigger the presumption was that “a killing has occurred.” App. 187. The jury was instructed to presume criminal intent, the sine qua non of criminal responsibility, from the fact of a dead body. The jury may have found the fact that there was a body, but this jury has not met In re Winship’s requirement of finding, beyond a reasonable doubt, “every fact necessary to constitute the crime,” 397 U. S., at 364: this jury may never have found that Clark acted with malice, an essential element of the crimes of which he was convicted.

I — I HH HH

The Court recognized 40 years ago that the question a reviewing court must ask “is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedures and standards” required by the Constitution. Bollenbach v. United States, 326 U. S., at 614. When a jury has not been properly instructed concerning an essential element of the offense that has been charged, the danger exists that the defendant has been deprived of his Sixth and Fourteenth Amendment right to have the jury-determine whether the State has proved each element of the offense beyond a reasonable doubt. Faced with an incorrect instruction and a general verdict of guilty, a reviewing court simply lacks any adequate basis for deciding whether the jury has performed its constitutionally required function. Because I believe the Court today asks and answers the wrong question, I dissent.

       In Connecticut v. Johnson, 460 U. S. 73 (1983), the Court was equally divided on the question whether ordinary harmless-error analysis was appropriate in cases of Sandstrom error. Compare 460 U. S., at 84-87 (plurality opinion) (such error “is the functional equivalent of a directed verdict” on intent, and is therefore harmless only when the defendant concedes intent), with id., at 95-99 (Powell, J., dissenting) (Chapman standard applies to Sandstrom error). Cf. 460 U. S., at 88 (Stevens, J., concurring in judgment) (joining affirmance of state-court decision that Sandstrom error could not be harmless, but on the ground that the decision was actually one of state law). The Johnson plurality noted that state and federal courts were in conflict on this issue. 460 U. S., at 75, n. 1 (collecting cases). Due in part to the divided views in Johnson, that conflict has persisted. Compare, e. g., Tucker v. Kemp, 762 F. 2d 1496, 1501-1503 (CA11 1985) (en banc) (applying Chapman harmless-error analysis), cert. denied, post, p. 1022, with In re Hamilton, 721F. 2d 1189, 1190-1191 (CA9 1983) (holding that Sandstrom error would be harmless only if intent was not contested at trial).

       The Court of Criminal Appeals noted that, almost immediately following the “presumption” instruction, the judge charged:
      “The question of whether the alleged killing was done with malice is for you to determine from the entire case, and you should look to all of the facts and circumstances developed by the evidence to determine whether the State has . . . proven beyond a reasonable doubt the existence of malice. If you have a reasonable doubt as to whether the alleged killing was done with malice, then the Defendant cannot be guilty of murder in the second degree and you must acquit him of that offense.” App. 188.
      The Court of Criminal Appeals reasoned that this instruction adequately informed the jurors that the burden of proof on malice remained on the State at all times. App. to Pet. for Cert. A-37 to A-39.

       In Sandstrom we held that an instruction creating a presumption of malice that has the effect of shifting the burden of proof on intent to the defendant violates due process under the rule of In re Winship, 397 U. S. 358 (1970). Sandstrom v. Montana, 442 U. S., at 523-524. Sandstrom was decided shortly before respondent’s trial commenced. 611 F. Supp. 294, 296, n. 3 (1983).

       The Court of Appeals’ judgment is reported at 762 F. 2d 1006 (1985). The court’s opinion is unpublished.

       We thus do not consider whether, taken in context, the instructions were permissible under our decisions in Sandstrom and in Francis v. Franklin, 471 U. S. 307 (1985). For purposes of our harmless-error analysis, we assume that the Court of Appeals properly held that the instructions were unconstitutional.

       Each of the examples Chapman cited of errors that could never be harmless either aborted the basic trial process, Payne v. Arkansas, 356 U. S. 560 (1958) (use of coerced confession), or denied it altogether, Gideon v. Wainwright, 372 U. S. 335 (1963) (denial of counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (biased adjudicator).

       Unlike errors such as judicial bias or denial of counsel, the error in this case did not affect the composition of the record. Evaluation of whether the error prejudiced respondent thus does not require any difficult inquiries concerning matters that might have been, but were not, placed in evidence. Cf. Holloway v. Arkansas, 435 U. S. 475, 490-491 (1978). Consequently, there is no inherent difficulty in evaluating whether the error prejudiced respondent in this case. See United States v. Frady, 456 U. S. 152, 171-174 (1982) (evaluating Sandstrom error for prejudice under the “cause and actual prejudice” standard of Wainwright v. Sykes, 433 U. S. 72 (1977)).

       “Because a presumption does not remove the issue of intent from the jury’s consideration, it is distinguishable from other instructional errors that prevent a jury from considering an issue.” Connecticut v. Johnson, 460 U. S., at 95, n. 3 (Powell, J., dissenting). Cf. Jackson v. Virginia, 443 U. S. 307, 320, n. 14 (1979) (suggesting that failure to instruct a jury as to the reasonable-doubt standard cannot be harmless).

       See Brooks v. Kemp, 762 F. 2d 1383, 1423 (CA11 1985) (Kravitch, J., concurring and dissenting) (emphasizing that juries are free to infer intent from conduct).

       In Hopper v. Evans, we held that States are not constitutionally required to instruct juries about lesser included offenses where such instructions are not warranted by the evidence. The defendant in that case claimed that the trial court should have instructed the jury as to unintentional homicide during the commission of a robbery. We concluded:
      “It would be an extraordinary perversion of the law to say that intent to kill is not established when a felon, engaged in an armed robbery, admits to shooting his victim in the back .... The evidence not only supported the claim that respondent intended to kill the victim, but affirmatively negated any claim that he did not intend to kill the victim. An instruction on the offense of unintentional killing during this robbery was therefore not warranted.” 456 U. S., at 613 (citation omitted).
      As Hopper suggests, it would defy common sense to conclude that an execution-style killing or a violent torture-murder was committed unintentionally. See Connecticut v. Johnson, 460 U. S., at 99, n. 7 (Powell, J., dissenting). It follows that no rational jury would need to rely on an erroneous presumption instruction to find malice in such cases. Id., at 97, and n. 5.

       We think the dissent, and not the Court, “asks and answers the wrong question” in this case. Post, at 596 (opinion of Blackmun, J.). We agree that the determination of guilt or innocence, according to the standard of proof required by Winship and its progeny, is for the jury rather than the court. See post, at 593. Harmless-error analysis addresses a different question: what is to be done about a trial error that, in theory, may have altered the basis on which the jury decided the case, but in practice clearly had no effect on the outcome? This question applies not merely to Sandstrom violations, but to other errors that may have affected either the instructions the jury heard or the record it considered — including errors such as mistaken admission of evidence, or unconstitutional comment on a defendant’s silence, or erroneous limitation of a defendant’s cross-examination of a prosecution witness. All of these errors alter the terms under which the jury considered the defendant’s guilt or innocence, and therefore all theoretically impair the defendant’s interest in having a jury decide his case. The dissent’s argument — that the Sixth Amendment forbids a reviewing court to decide the impact of a trial error on the outcome, post, at 593-594 — logically implies that all such errors are immune from harmless-error analysis. Yet this Court repeatedly has held to the contrary. E. g., Delaware v. Van Arsdall, 475 U. S. 673 (1986) (limitation on defendant’s cross-examination); United States v. Hasting, 461 U. S. 499 (1983) (improper comment on defendant’s failure to testify); Moore v. Illinois, 434 U. S. 220 (1977) (admission of improperly obtained witness identification). Indeed, Chapman v. California, 386 U. S. 18 (1967), the beginning of this line of cases, applied harmless-error analysis to an error that placed an improper argument before the jury. Id., at 24-25 (finding comment on defendant’s silence harmful). See also Hopper v. Evans, 456 U. S., at 613-614 (citing Chapman, and finding error in jury instructions harmless). These decisions, ignored by the dissent, strongly support application of harmless-error analysis in the context of Sandstrom error.

       The dissent contends that the jury’s decision to convict respondent of only one count of premeditated murder “aptly illustrate^] why harmless-error analysis is inappropriate” in cases where intent is at issue. Post, at 594 (opinion of Blackmun, J.). This argument is without merit. The jury determined that respondent was guilty beyond a reasonable doubt of “intend[ing] to take the life” of Joy Faulk “with cool purpose.” App. 185 (trial court’s charge defining premeditation). The jury then determined that respondent was guilty of the malicious, but not premeditated, murder of Charles Browning. The only alleged error in these instructions was the trial court’s instruction that the jury could presume malice from a killing. Respondent’s (and the dissent’s) theory is that a proper instruction on the burden of proof on malice might have led the jury to find neither malice nor premeditation as to Faulk’s killing. This argument is implausible on its face.
      We leave the question whether the error in this case was harmless beyond a reasonable doubt to the Court of Appeals on remand. We do suggest that the different verdicts for the two killings in no way support respondent’s contention that the Sandstrom error in this case was prejudicial.

       The parties disagree as to the scope of the relevant evidence that must be assessed under Chapman. In particular, petitioner argues that evidence of amnesia, of respondent’s drunkenness on the day of the murders, and of insanity is irrelevant to malice. Respondent disagrees. These are, of course, issues of Tennessee law in the first instance, and we need not resolve them here. Nor do we express any view as to whether, assuming all the evidence in question is relevant to malice, the error in this case was nevertheless harmless beyond a reasonable doubt.

       See Vasquez v. Hillery, 474 U. S. 254, 262 (1986) (“[Ijntentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. Thus, the remedy we have embraced for over a century — the only effective remedy for this violation — is not disproportionate to the evil that it seeks to deter”). In Vasquez, the Court explicitly rejected the dissent’s suggestion that grand jury discrimination should be subject to harmless-error analysis because of a general principle that “a conviction should not be reversed for constitutional error where the error did not affect the outcome of the prosecution.” Id., at 269 (Powell, J., dissenting). See also Rose v. Mitchell, 443 U. S. 545 (1979).

       See Batson v. Kentucky, 476 U. S. 79, 100 (1986) (“If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed”). See also Turner v. Murray, 476 U. S. 28, 37 (1986) (plurality opinion) (“The inadequacy of voir dire [about the possibility of racial prejudice] in this case requires that petitioner’s death sentence be vacated. . . . Our judgment in this case is that there was án unacceptable risk of racial prejudice infecting the capital sentencing proceeding”). In Turner, the Court explicitly rejected the dissent’s suggestion that the death sentence should stand because no actual jury prejudice was evident from the record. See id., at 47 (Powell, J., dissenting) (“Nothing in this record suggests that racial bias played any role in the jurors’ deliberations”).

       See Payne v. Arkansas, 356 U. S. 560, 568 (1958) (“[TJhis Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment”); Chapman, 386 U. S., at 23, n. 8 (citing Payne as “coerced confession” case and example of constitutional error that may not be deemed harmless). See also Miller v. Fenton, 474 U. S. 104, 109 (1985) (“This Court has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment”).

       See Allen v. Hardy, ante, at 259 (“By serving a criminal defendant’s interest in neutral jury selection procedures, the rule in Batson may have some bearing on the truthfinding function of a criminal trial. But the decision serves other values as well. Our holding ensures that States do not discriminate against citizens who are summoned to sit in judgment against a member of their own race and strengthens public confidence in the administration of justice. The rule in Batson, therefore, was designed to ‘serve multiple ends,’ only the first of which may have some impact on truthfinding”); Allen v. Illinois, ante, at 375 (“The privilege against self-incrimination enjoined by the Fifth Amendment is not designed to enhance the reliability of the factfinding determination; it stands in the Constitution for entirely independent reasons”).

       Cf. United States v. Jackson, 429 F. 2d 1368, 1373 (CA7 1970) (Clark, J., sitting by designation) (‘“Harmless error’ is swarming around the 7th Circuit like bees. Before someone is stung, it is suggested that the prosecutors enforce Miranda to the letter and the police obey it with like diligence; otherwise the courts may have to act to correct a presently alarming situation”). See also United States v. Lane, 474 U. S. 438, 450-451, nn. 13 and 14 (1986) (Stevens, J., dissenting) (collecting authorities criticizing the impact of the Court’s recent expansive harmless-error jurisprudence).

       See, e. g., Smith v. Murray, 477 U. S. 527 (1986).

       Cf. Holloway v. Arkansas, 435 U. S. 475, 491 (1978) (harmless-error analysis inappropriate in assessing the constitutional error of joint representation in part because such an inquiry requires “‘unguided speculation’”); United States v. Lane, 474 U. S., at 474, and n. 16 (Stevens, J., dissenting).

       A State, of course, remains free not to apply harmless-error review as a matter of state constitutional protections. See Delaware v. Van Arsdall, 475 U. S. 673, 701 (1986) (Stevens, J., dissenting); Connecticut v. Johnson, 460 U. S. 73, 88 (1983) (Stevens, J., concurring in judgment). Because the Court of Appeals for the Sixth Circuit is more familiar with Tennessee law than we are, it is appropriate for that court to consider the state of Tennessee law on this subject.

       The trial court’s wording of the definition of malice and of the presumption of malice for first-degree murder differed slightly from that it gave for second-degree murder, presented in the text. Because these differences are immaterial, the courts below treated the instructions as if they were identical, see App. to Pet. for Cert. A-10, A-12, as does the majority.

       Under Sandstrom, both mandatory conclusive presumptions, which remove the presumed element from the case once the State has proved the predicate fact, and mandatory rebuttable presumptions, which require the jury to find the presumed element unless the defendant rebuts the presumption, are unconstitutional. See Sandstrom v. Montana, 442 U. S. 510, 517-518 (1979); Francis v. Franklin, 471 U. S. 307, 314, n. 2 (1985). This case involves the latter type.

       Where, of course, a defendant has conceded intent, the use of an erroneous presumption as to intent may be superfluous, and a “reviewing court can be confident that a Sandstrom error did not play any role in the jury’s verdict.” See Connecticut v. Johnson, 460 U. S., at 87 (plurality opinion).