Can Constitutional Error be Harmless?

Dow, David R.

doi:10.2139/ssrn.3577087

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Can Constitutional Error be Harmless?

Utah Law Review, Vol. 2000, No. 483, 2000

54 Pages Posted: 25 Nov 2020

See all articles by David R. Dow

David R. Dow

University of Houston Law Center

Date Written: April 15, 2020

Abstract

Chapman v. California held that federal constitutional error in a state criminal proceeding does not require reversal if the state can establish that the error was harmless. Writing about Chapman several years after it was decided, Professor DanielJ. Meltzer observed that in fact the case had decided two propositions: first, that constitutional errors can be deemed harmless; and second, that federal law determines the issue of harmlessness. Professor Meltzer then focused exclusively on the second proposition, concluding that it was sound. We focus here on the first proposition and demonstrate that harmless error doctrine is conceptually incoherent. We argue that in view of this incoherence, constitutional errors ought not to be subject to harmless error review. In short, Chapman should be overruled.

Keywords: harmless error, chapman, constitutional

Suggested Citation: Suggested Citation

Dow, David R., Can Constitutional Error be Harmless? (April 15, 2020). Utah Law Review, Vol. 2000, No. 483, 2000, Available at SSRN: https://ssrn.com/abstract=3577087 or http://dx.doi.org/10.2139/ssrn.3577087