Opinion

JUSTICE O'CONNOR delivered the opinion of the Court.

In Estelle v. Smith, 451 U. S. 454 (1981), we recognized that defendants formally charged with capital crimes have a Sixth Amendment right to consult with counsel before submitting to psychiatric examinations designed to determine their future dangerousness. The question in this case is whether it was harmless error to introduce psychiatric testimony obtained in violation of that safeguard in a capital sentencing proceeding.

I

On March 15, 1979, petitioner John T. Satterwhite was charged with the capital crime of murdering Mary Francis Davis during a robbery. The next day, before Satterwhite was represented by counsel, the presiding District Judge granted the State's request for a psychological examination to determine Satterwhite's competency to stand trial, sanity at the time of the offense, and future dangerousness. 1 Record 2. Though the State's motion and the court's order were placed in the court file, Satterwhite was not served with copies of either. Psychologist Betty Lou Schroeder examined Satterwhite pursuant to the court's order.

Satterwhite was indicted on April 4. The trial court appointed counsel to represent him and sent a copy of the appointment letter to the Bexar County District Attorney. App. 10. Satterwhite was arraigned on April 13. On April 17, the District Attorney filed a second motion requesting a psychiatric evaluation of Satterwhite's competency to stand trial, sanity at the time of the crime, and future dangerousness. App. 12. The District Attorney did not serve defense counsel with a copy of this motion. The next day, without determining whether defense counsel had been notified of the State's motion, the trial court granted the motion and ordered the Sheriff to produce Satterwhite for examination by psychologist Betty Lou Schroeder and psychiatrist John T. Holbrook. The record does not reveal when the court's order was placed in the court file. [ Footnote 1 ]

On May 18, a letter to the trial court from psychiatrist James P. Grigson, M. D., appeared in the court file. Dr. Grigson wrote that, pursuant to court order, he had examined Satterwhite on May 3, 1979, in the Bexar County Jail. He further reported that, in his opinion, Satterwhite has "a severe antisocial personality disorder and is extremely dangerous and will commit future acts of violence." App. 15-16.

Satterwhite was tried by jury and convicted of capital murder. In accordance with Texas law, a separate proceeding was conducted before the same jury to determine whether he should be sentenced to death or to life imprisonment. See Tex. Code Crim.Proc.Ann., Art. 37.071(a) (Vernon Supp.1988). The State produced Dr. Grigson as a witness in support of its case for the death penalty. Over defense counsel's objection, Dr. Grigson testified that, in his opinion, Satterwhite presented a continuing threat to society through acts of criminal violence.

At the conclusion of the evidence, the court instructed the jury to decide whether the State had proved, beyond a reasonable doubt, (1) that

the conduct of the defendant that caused the death [was] committed deliberately and with the reasonable expectation that the death of [the victim] would result,

and (2) that there is "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." App. 33. Texas law provides that, if a jury returns affirmative findings on both special verdict questions, "the court shall sentence the defendant to death." Tex.Code Crim.Proc.Ann., Art. 37.071(e) (Vernon Supp.1988). The jury answered both questions affirmatively, and the trial court sentenced Satterwhite to death.

Satterwhite appealed his death sentence, arguing that the admission of Dr. Grigson's testimony violated the Sixth Amendment right to assistance of counsel recognized in Estelle v. Smith, supra. The Texas Court of Criminal Appeals agreed, but concluded that the error was harmless because an average jury would have found the properly admitted evidence sufficient to sentence Satterwhite to death. 726 S.W.2d 81, 92-93 (1986). The court acknowledged our holding that a Sixth Amendment violation tainting an entire criminal proceeding can never be considered harmless, Holloway v. Arkansas, 435 U. S. 475 (1978), but reasoned that a per se rule of reversal is inappropriate where, as here, the error relates only to the admission of particular evidence. 726 S.W.2d at 93, n. 5. We granted certiorari to decide whether harmless error analysis applies to violations of the Sixth Amendment right set out in Estelle v. Smith. 482 U.S. 905 (1987).

II

The controversy in Estelle v. Smith, supra, also centered on the expert testimony of Dr. James P. Grigson. In that case, as in this, Dr. Grigson appeared as a witness for the State in a capital sentencing proceeding and testified that the defendant was a severe sociopath who would continue to commit violent crimes in the future. He based his testimony upon a psychiatric examination of the defendant that he had conducted pursuant to court order. The problem in the case was that defense counsel were not given advance notice that Dr. Grigson's psychiatric examination, encompassing the issue of their client's future dangerousness, would take place. We recognized that, for a defendant charged with a capital crime, the decision whether to submit to a psychiatric examination designed to determine his future dangerousness is " literally a life or death matter'" which the defendant should not be required to face without "`the guiding hand of counsel.'" 451 U.S. at 451 U. S. 471, quoting Smith v. Estelle, 602 F.2d 694, 708 (CA5 1979), and Powell v. Alabama, 287 U. S. 45, 287 U. S. 69 (1932). We held that defense counsel must be given advance notice of such an examination.

The Texas Court of Criminal Appeals determined that the Sixth Amendment notice requirement set out in Estelle v. Smith was not met in this case, and we agree. Since Satterwhite's indictment, arraignment, and appointment of counsel had all occurred before Dr. Grigson examined him in the Bexar County Jail, it is clear that his Sixth Amendment right to counsel had attached at the time. See Estelle, 451 U.S. at 451 U. S. 469 ; Kirby v. Illinois, 406 U. S. 682, 406 U. S. 688 -689 (1972). The State does not contest the lower court's finding that Satterwhite did not waive his right to consult with his attorney before participating in the psychiatric examination. The State contends, however, that various ex parte motions and orders contained in the court file provided defense counsel with notice that an examination encompassing the issue of his client's future dangerousness would take place. [ Footnote 2 ]

We note preliminarily that the applicability and timing of some of these filings are disputed: the record does not contain a court order authorizing Dr. Grigson to examine Satterwhite, 726 S.W.2d at 92; and, as we have already noted, it is unclear whether the April 18 order appointing Drs. Schroeder and Holbrook was placed in the court file before Dr. Grigson performed his examination. See n. 1, supra. Yet even if the ex parte orders and filings were timely and were applicable to Dr. Grigson's examination, we agree with the Texas Court of Criminal Appeals that they did not adequately notify defense counsel that Dr. Grigson would examine the defendant to assess his future dangerousness. The Court of Criminal Appeals did not find that defense counsel had actual knowledge of the motion and order for the psychiatric examination. The State has cited no authority for its proposition that constructive notice to defense counsel achieved by mere placement of the State's motions and the court's ex parte orders in the court file satisfies the Sixth Amendment, and we hold that it does not. Accordingly, like the Texas Court of Criminal Appeals, we conclude that the use of Dr. Grigson's testimony at the capital sentencing proceeding on the issue of future dangerousness violated the Sixth Amendment.

Our conclusion does not end the inquiry, because not all constitutional violations amount to reversible error. We generally have held that, if the prosecution can prove beyond a reasonable doubt that a constitutional error did not contribute to the verdict, the error is harmless and the verdict may stand. Chapman v. California, 386 U. S. 18, 386 U. S. 24 (1967). The harmless error rule

'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.'

Rose v. Clark, 478 U. S. 570, 478 U. S. 577 (1986) (quoting Delaware v. Van Arsdall, 475 U. S. 673, 475 U. S. 681 (1986)).

Some constitutional violations, however, by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless. Sixth Amendment violations that pervade the entire proceeding fall within this category. See Holloway v. Arkansas, 435 U. S. 475 (1978) (conflict of interest in representation throughout entire proceeding); Chapman, supra, at 386 U. S. 23, n. 8 (citing Gideon v. Wainwright, 372 U. S. 335 (1963) (total deprivation of counsel throughout entire proceeding)); White v. Maryland, 373 U. S. 59 (1963) (absence of counsel from arraignment proceeding that affected entire trial because defenses not asserted were irretrievably lost); Hamilton v. Alabama, 368 U. S. 52 (1961) (same). Since the scope of a violation such as a deprivation of the right to conflict-free representation cannot be discerned from the record, any inquiry into its effect on the outcome of the case would be purely speculative. As explained in Holloway:

In the normal case where a harmless error rule is applied, the error occurs at trial, and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. But in a case of joint representation of conflicting interests the evil -it bears repeating -is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.... Thus, any inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.

435 U.S. at 435 U. S. 490 -491 (citations omitted).

Satterwhite urges us to adopt an automatic rule of reversal for violations of the Sixth Amendment right recognized in Estelle v. Smith. He relies heavily upon the statement in Holloway that

when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U. S. 335 (1963); Hamilton v. Alabama, 368 U. S. 52 (1961); White v. Maryland, 373 U. S. 59 (1963).

435 U.S. at 435 U. S. 489. His reliance is misplaced, however, for Holloway, Gideon, Hamilton, and White were all cases in which the deprivation of the right to counsel affected -and contaminated -the entire criminal proceeding. In this case, the effect of the Sixth Amendment violation is limited to the admission into evidence of Dr. Grigson's testimony. We have permitted harmless error analysis in both capital and noncapital cases where the evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial. In Milton v. Wainwright, 407 U. S. 371 (1972), for example, the Court held the admission of a confession obtained in violation of Massiah v. United States, 377 U. S. 201 (1964), to be harmless beyond a reasonable doubt. And we have held that harmless error analysis applies to the admission of identification testimony obtained in violation of the right to counsel at a post-indictment lineup. Moore v. Illinois, 434 U. S. 220 (1977); Gilbert v. California, 388 U. S. 263 (1967) (capital case); United States v. Wade, 388 U. S. 218 (1967). Just last year we indicated that harmless error analysis would apply in a noncapital case to constitutional error in the use of a psychological evaluation at trial. Buchanan v. Kentucky, 483 U. S. 402, 483 U. S. 425, n. 21 (1987).

It is important to avoid error in capital sentencing proceedings. Moreover, the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer. Nevertheless, we believe that a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury. Accordingly, we hold that the Chapman harmless error rule applies to the admission of psychiatric testimony in violation of the Sixth Amendment right set out in Estelle v. Smith.

III

Applying the Chapman harmless error test, we cannot agree with the Court of Criminal Appeals that the erroneous admission of Dr. Grigson's testimony was harmless beyond a reasonable doubt. A Texas court can sentence a defendant to death only if the prosecution convinces the jury, beyond a reasonable doubt, that

there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Tex.Code Crim.Proc.Ann., Art. 37.071(b)(2) (Vernon Supp.1988). The Court of Criminal Appeals thought that the admission of Dr. Grigson's expert testimony on this critical issue was harmless because

the properly admitted evidence was such that the minds of an average jury would have found the State's case [on future dangerousness] sufficient... even if Dr. Grigson's testimony had not been admitted.

726 S.W.2d at 93. The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 386 U. S. 24.

The evidence introduced at sentencing showed that, in addition to his conviction in this case, Satterwhite had four prior convictions of crimes ranging from aggravated assault to armed robbery. Eight police officers testified that Satterwhite's reputation for being a peaceful and law-abiding citizen was bad, and Satterwhite's mother's former husband testified that Satterwhite once shot him during an argument. The State also introduced the testimony of Bexar County psychologist Betty Lou Schroeder. [ Footnote 3 ] Dr. Schroeder testified that she found Satterwhite to be a "cunning individual" and a "user of people," with an inability to feel empathy or guilt. She testified that, in her opinion, Satterwhite would be a continuing threat to society through acts of criminal violence. App. 55-56.

Dr. Grigson was the State's final witness. His testimony stands out both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message. Dr. Grigson was the only licensed physician to take the stand. He informed the jury of his educational background and experience, which included teaching psychiatry at a Dallas medical school and practicing psychiatry for over 12 years. He stated unequivocally that, in his expert opinion, Satterwhite "will present a continuing threat to society by continuing acts of violence." He explained that Satterwhite has "a lack of conscience" and is "as severe a sociopath as you can be." To illustrate his point, he testified that, on a scale of 1 to 10 -where "ones" are mild sociopaths and "tens" are individuals with complete disregard for human life -Satterwhite is a "ten plus." Dr. Grigson concluded his testimony on direct examination with perhaps his most devastating opinion of all: he told the jury that Satterwhite was beyond the reach of psychiatric rehabilitation. Id. at 72-73.

The District Attorney highlighted Dr. Grigson's credentials and conclusions in his closing argument:

Doctor James Grigson, Dallas psychiatrist and medical doctor. And he tells you that, on a range from 1 to 10, he's ten plus. Severe sociopath. Extremely dangerous. A continuing threat to our society. Can it be cured? Well, it's not a disease. It's not an illness. That's his personality. That's John T. Satterwhite.

8 Record 2725-2726.

The finding of future dangerousness was critical to the death sentence. Dr. Grigson was the only psychiatrist to testify on this issue, and the prosecution placed significant weight on his powerful and unequivocal testimony. Having reviewed the evidence in this case, we find it impossible to say beyond a reasonable doubt that Dr. Grigson's expert testimony on the issue of Satterwhite's future dangerousness did not influence the sentencing jury. Accordingly, we reverse the judgment of the Texas Court of Criminal Appeals insofar as it affirms the death sentence, and we remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE KENNEDY took no part in the consideration or decision of this case.

Notes

[ Footnote 1 ]

The Assistant Attorney General represented at oral argument that the trial court's order was stamped with the Clerk's stamp showing that it was filed on April 18. Tr. of Oral Arg. 22. The copy of the April 18 order contained in the record before us, however, contains no such stamp. 1 Record 23. Defense counsel informs us that, although he examined the court file twice, he did not discover the April 18 order until mid-May. Tr. of Oral Arg. 7.

[ Footnote 2 ]

The State points to the following documents in the record: (1) the State's March 16 motion for a psychological examination, App. 3-4; (2) the court's March 16 order granting that motion and appointing Dr. Betty Lou Schroeder to examine Satterwhite, id. at 5; (3) the State's April 17 motion for a psychiatric examination to be conducted by Drs. Holbrook and Schroeder, id. at 12-13; and (4) the court's April 18 order granting that motion, id. at 14.

[ Footnote 3 ]

Satterwhite now contends that Dr. Schroeder's testimony was also admitted in violation of Estelle v. Smith, 451 U. S. 454 (1981). The Texas Court of Criminal Appeals explicitly noted that this claim was not raised at trial or on appeal, and we decline to consider it.