Krulewitch v. United States/Dissent Burton
Mr. Justice BURTON, dissenting.
While I agree with the opinion of the Court that the hearsay testimony in question was not properly admissible, I regard its admission, under the circumstances of this case, as an absolutely harmless error.
In speaking of harmless errors that may result from the admission of evidence, this Court has said: 'Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy of § 269  to questions of the admission of cumulative evidence.' Kotteakos v. United States, 328 U.S. 750, 763, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557.
Again, in determining whether error in the admission of evidence should result in a reversal of a judgment, we said that the question is-
'what effect the error had or reasonably may be taken to have had upon the jury's decision. * * *
'If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress.' Id., 328 U.S. at pages 764-765, 66 S.Ct. at page 1247.
The issue before us involves no constitutional question or specific command of Congress. The trial was a long one concerning personal conduct involving simple issues of fact. The record of it covers more than 800 pages. The jury must have been thoroughly familiar with the issues and with the degree of dependability, if any, to be placed upon the oral testimony of the petitioner and of the two witnesses involved in the conversation that is before us as reported by one of them. The evidence supporting the jury's verdict was cumulative, repetitive and corroborated to such a point that I cannot believe that the verdict or the rights of the parties could have been appreciably affected by such weight as the jury may have attached to this reported snatch of conversation b tween two people of such negligible dependability as was demonstrated here. After this extended fourth trial, to set aside this jury's verdict merely because of this particular bit of hearsay testimony seems to me to be an unrealistic procedure that tends to make a travesty of the jury system which is neither necessary nor deserved. I would affirm the judgment below.
^1 Section 269 of the Judicial Code, as then in effect, and as in effect at the time of the trial of the instant case and of the entry of the judgment below, provided: 'Sec. 269. * * * On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.' 40 Stat. 1181, 28 U.S.C. § 391.
Rule 52(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., as continuously in effect during and since the time of the trial of the instant case and as still in effect, provides:
'Rule 52. Harmless Error and Plain Error.
'(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. * * *'