Harmless Error (Update)

views updated


When an appellate court finds that a criminal defendant's constitutional rights were violated at trial, it must then decide whether to reverse the defendant's conviction. In a case where the appellate court has little reason to believe that the constitutional error contributed to the jury's decision to convict, the court will conclude that the constitutional error was "harmless" and will affirm the defendant's conviction.

Often the appellate court's inquiry will focus on whether the government offered the jury overwhelming evidence of the defendant's guilt; whether the constitutional violation was likely to inflame or prejudice the jury; whether erroneously admitted evidence was merely duplicative of other properly admitted evidence; and whether the trial judge was able to dissipate the likely effect of the error on the jury through curative instructions.

A tiny category of constitutional errors are not subject to harmless error analysis but instead trigger automatic reversal. These include the complete denial of the Sixth Amendment right to counsel; the denial of the defendant's right to represent himself at trial; the denial of a public trial; the giving of an inaccurate instruction to the jury on the standard of proof beyond a reasonable doubt; the denial of an impartial factfinder; and the racially discriminatory selection of jurors. In Arizona v. Fulminante (1991), the Supreme Court explained that these constitutional violations are structural errors, basic defects in the trial framework which can be presumed to make the trial unfair. The Court distinguished this small group of structural errors from what it called "trial errors," the vast number of other constitutional violations that can occur during the presentation of the case to the jury. Because an appellate court can assess the likely impact of trial errors on the jury's assessment of the case, automatic reversal is not necessary, and harmless error analysis will apply.

Eric L. Muller


Edwards, Harry T. 1995 To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated? New York University Law Review 70:1167–1228.

Traynor, Roger J. 1970 The Riddle of Harmless Error. Columbus: Ohio State University Press.