Harmless Errors and Substantial Rights
64 Pages Posted: 16 Feb 2018
Date Written: February 11, 2018
The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error analysis when it applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine's longstanding mysteries. There is widespread consensus that harmless constitutional error is a remedial doctrine, in which the relevant question is the appropriate remedy for an acknowledged violation of rights. But harmless error is in fact better understood as an inquiry into the substance of constitutional rights: a purported error can be harmless only if the defendant's conviction was not actually obtained in violation of the defendant's rights. That approach can help solve the doctrine's longstanding riddles. It explains why harmless error is binding on state courts; it clears up confusion about the relationship between the doctrine and statutory harmless-error requirements; it shows which errors can never be treated as harmless without effectively being eliminated; and it provides useful guidance for how courts should conduct harmless-error analysis where it applies. Most importantly, it reflects a more realistic understanding of the right-remedy relationship that makes it harder for courts to surreptitiously undermine constitutional values.
Keywords: harmless error, harmless constitutional error, criminal procedure
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