The Riddle of Harmless Error Revisited

Academic Article

Abstract

  • This article takes a fresh look at what the Constitution requires of reviewing courts when they conclude that a criminal judgment has been tainted by constitutional error. It suggests that new insights may be found by situating harmless-error doctrine within a broader, trans-contextual analysis of how constitutional remedies function. It then demonstrates how understanding what the Constitution requires of reviewing courts can serve as a springboard for necessary reform. Ultimately, it argues that the Supreme Court can and should jettison Chapman in favor of a simplified, unitary, and trans-contextual harmless-error test—reconceived as an elaboration of 28 U.S.C. § 2111—that largely tracks the approach for which Justice Traynor argued. Under this test, a reviewing court would set aside any conviction tainted by error unless it concludes that it was highly probable that the error did not affect the judgment. A reviewing court also would set aside any conviction tainted by error if the error undermined fundamental constitutional values.
  • Authors

    Status

    Publication Date

  • 2016
  • Keywords

  • Chapman v. California
  • constitutional common law
  • constitutional error
  • harmless-error
  • Start Page

  • 59
  • End Page

  • 123
  • Volume

  • 54