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Causing Constitutional Harm

48 Pages Posted: 11 Aug 2005  

Jason M. Solomon

Stanford Law School


The conventional wisdom on harmless-error doctrine is that there are two different and irreconcilable approaches, reflected in two coexisting lines of Supreme Court cases. Much of the scholarship on harmless error focuses on the difference in these two approaches - whether one looks at the strength of the overall evidence against the defendant, absent the error (the guilt-based approach), or on the likely impact of the error itself on the jury (the error-based approach). But this debate obscures the shared normative ideal at the heart of harmless-error doctrine. I argue that by using tort law, these two approaches can be reconciled in a way that increases the accuracy of harmless-error analysis overall.

This Article proposes reconceptualizing harmless-error analysis as a determination of causation in a constitutional tort claim, and using this reconception to provide a way out of the doctrinal morass. By turning to tort-law doctrine, I grapple with the question: what does it mean for an error to cause a conviction? Indeed, different conceptions of factual causation appear to account for many of the differences in harmless-error outcomes in the federal courts. The Article presents an empirical analysis of harmless-error determinations from the past decade, revealing that 93% of cases using a guilt-based or but for approach found that the error was harmless, as opposed to 47% of cases that used an error-based approach, the equivalent of the substantial factor test for factual causation. With either approach, judicial assumptions about the effects of different kinds of evidence on jurors are often remarkably at odds with research on jury behavior.

I argue that a hybrid approach to harmless-error analysis can better serve the normative ideal of determining factual causation at criminal trials, and avoid appellate fact-finding that violates the Sixth Amendment. In order to make accurate causal determinations, though, we must make better use of empirical research on how various kinds of errors impact jurors, as well as specific evidence of influence on the jury.

Keywords: Harmless error, torts, criminal procedure, juries, evidence, constitutional, trials

JEL Classification: K10, K13, K14

Suggested Citation

Solomon, Jason M., Causing Constitutional Harm. Northwestern University Law Review, Vol. 99, No. 3, p. 1053, 2005. Available at SSRN:

Jason Solomon (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-736-6080 (Phone)

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