Revising Harmless Error: Making Innocence Relevant to Direct Appeals

13 Pages Posted: 31 Oct 2010 Last revised: 23 Nov 2011

See all articles by Helen A. Anderson

Helen A. Anderson

University of Washington - School of Law

Date Written: October 27, 2010


The direct appeal of a convicted defendant is almost never concerned with actual innocence. The system seems to privilege procedural claims, and it is extremely difficult, if not impossible, to get an appellate court to take seriously a claim of factual error such as the claim that a witness lied or was mistaken. The disconnect between appeals and actual innocence is ironic, since most jurisdictions provide funding for direct appeals, but not for collateral attacks where claims of actual innocence can be litigated. This article focuses on one aspect of appellate review that could in theory be made more likely to provide relief to the innocent through more reliable fact-finding: the harmless error analysis. It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal. According to the Innocence Project, the leading cause of wrongful convictions is eyewitness misidentification, followed by "unvalidated/improper forensics," false confessions, and informants. Current harmless error analysis runs contrary to these findings, giving undue weight to precisely the kind of evidence often implicated in wrongful convictions, and not sufficiently considering the impact of erroneously admitted evidence on the jury. This article looks at the history of harmless error analysis, how it is applied in cases where the likely causes of wrongful conviction are implicated, and what changes can be made to reinvigorate harmless error so that courts take seriously the possibility of innocence given what we have learned through DNA exonerations.

Keywords: Harmless Error, Criminal Appeal, Exoneration, Innocence, DNA

JEL Classification: K14

Suggested Citation

Anderson, Helen A., Revising Harmless Error: Making Innocence Relevant to Direct Appeals (October 27, 2010). Texas Wesleyan Law Review, Vol. 17, pp. 391-402, 2011, University of Washington School of Law Research Paper No. 2011-29, Available at SSRN: or

Helen A. Anderson (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States


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