��ʮ���²����

Under Brecht v. Abrahamson, habeas relief is warranted only if the error has a “substantial and injurious effect” in determining the jury’s verdict and that determination is guided by five non-exclusive factors articulated in Delaware v. Van Arsdall.

Merolillo appeals the denial of his habeas petition. Merolillo challenges the admission, at trial, of the opinion of Dr. Graber because Dr. Graber did not testify, violating Merolillo’s Confrontation rights. At trial, several other experts testified about Dr. Graber’s opinions. On appeal, the Ninth Circuit found that the trial court erred in admitting Dr. Graber’s opinion and that Merolillo’s Confrontation Clause rights were violated. The court noted that under Brecht v. Abrahamson, 507 U.S. 619 (1993), habeas relief is warranted only if the error had a “substantial and injurious effect or influence on determining the jury’s verdict.” The “substantial and injurious effect” analysis is guided by five non-exclusive factors articulated in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Those factors are: “(1) the importance of the witness’s testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case.” Applying those factors, the Ninth Circuit held that Dr. Graber’s opinion testimony had a substantial and injurious effect in determining the jury’s verdict. REVERSED and REMANDED.