Harmless Error


Pursuant to the Federal Rules of Civil Procedure, unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order.[i]  At every stage of the proceeding, the courts disregard all errors and defects that do not affect any party’s substantial rights.[ii]

Similarly, the Federal Rules of Criminal Procedure provides that any error, defect, irregularity, or variance that does not affect substantial rights should be disregarded.[iii]

Although the federal rule by its terms applies to all errors where a proper objection is made at trial, there is a limited class of fundamental constitutional errors that defy analysis by harmless error standards.  Errors of this type are so intrinsically harmful as to require automatic reversal without regard to their effect on the outcome.[iv]

A constitutional error does not automatically require reversal of a conviction.  The Supreme Court has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless.[v]

The federal statute on harmless error states that on the hearing of any appeal or writ of certiorari in any case, the court should give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.[vi]

Federal courts apply federal harmless error standards when determining an appeal from a state court on a criminal conviction which raises constitutional issues.[vii]  If a question of federal constitutional dimension is raised in an appeal heard in a state court, the state court should apply federal harmless error standards.  However, when state standards alone have been violated, the state is free, without review, to apply its own state harmless-error rule to such errors of state law.[viii]

Neither the distinction between constitutional and non-constitutional error nor the strictly bifurcated standard of harmlessness it creates has been uniformly accepted by the courts.[ix]  An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot be conceived of as harmless.

Whether an error is harmless depends on the circumstances of a particular case.[x]  No definite rule of law governs this finding, rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case.  Error is harmless when it could not reasonably have affected the result of a trial.

Where an error could have been and was the subject of an objection at trial, the appellate courts have three possible standards of review:[xi]

  • harmless beyond a reasonable doubt;
  • high probability of harmlessness; and
  • more probably than not harmless.

An error is harmless if it is unimportant in relation to the whole and the verdict rendered was surely unattributable to the error.[xii]  Just as the verdict in a civil case need only be more probably than not true, so an error in a civil trial need only be more probably than not harmless.[xiii]  When an appellate court ponders the probable effect of an error on a civil trial, it need only find that the jury’s verdict is more probably than not untainted by the error.

In reviewing a jury verdict, an appellate court need not determine that the record is free of error, but rather, need only conclude that the error claimed did not preclude the losing party from receiving a fair trial.  It is important to have a trial free of those errors which might influence a verdict when the evidence on the issue of liability is so close that the jury might reasonably return a different verdict.[xiv]

The cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.[xv]  The purpose of a cumulative-error analysis is to address that possibility.  Since the cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless it is not reversible.[xvi]  It analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.  Unless an aggregate harmlessness determination can be made, collective error will mandate reversal, just as surely as will individual error that cannot be considered harmless.  The harmlessness of cumulative error is determined by conducting the same inquiry as for individual error, courts look to see whether the defendant’s substantial rights were affected.

A judgment will not be reversed unless the error is shown to be prejudicial to a substantial right of the aggrieved party.[xvii]  Appellate courts are not required to review records to evaluate a harmless-error claim, and do so sparingly, but they plainly have the authority to do so.[xviii]

The harmless error doctrine applies to discovery orders.[xix]  However, a total deprivation of the right to counsel at trial is not subject to the harmless error analysis.  The right to counsel is so basic to a fair trial that its infraction is never treated as harmless error.[xx] Further, right to self-representation is not amenable to harmless error analysis; the right is either respected or denied and its deprivation cannot be harmless.[xxi]  Also, an appellate court employs a harmless-error analysis in determining whether a material variance between the pleadings and proof results in prejudice.[xxii]  Similarly, denial of right to confront witnesses is subject to a harmless error analysis.[xxiii].

[i] USCS Fed Rules Civ Proc R 61

[ii] id

[iii] USCS Fed Rules Crim Proc R 52 (a)

[iv]United States v. Monger, 185 F.3d 574 (6th Cir. Ky. 1999)

[v] Ariz. v. Fulminante, 499 U.S. 279 (U.S. 1991)

[vi] 28 USCS § 2111

[vii] Chapman v. Cal., 386 U.S. 18 (U.S. 1967)

[viii] Cooper v. California, 386 U.S. 58 (U.S. 1967)

[ix] Haddad v. Lockheed California Corp., 720 F.2d 1454 (9th Cir. Cal. 1983)

[x] State v. Northcutt, 372 S.C. 207 (S.C. 2007)

[xi] Haddad v. Lockheed California Corp., 720 F.2d 1454 (9th Cir. Cal. 1983)

[xii] State v. Blank, 955 So. 2d 90 (La. Apr. 11, 2007)

[xiii] Haddad v. Lockheed California Corp., 720 F.2d 1454 (9th Cir. Cal. 1983)

[xiv] Karsten v. McCray, 157 Ill. App. 3d 1 (Ill. App. Ct. 2d Dist. 1987)

[xv] United States v. Rivera, 900 F.2d 1462 (10th Cir. Okla. 1990)

[xvi] id

[xvii] Roberts v. C & M Ready Mix Concrete Co., 767 P.2d 769 (Colo. Ct. App. 1988)

[xviii] United States v. Lane, 474 U.S. 438 (U.S. 1986)

[xix] Tagupa v. Board of Directors, 633 F.2d 1309 (9th Cir. Haw. 1980)

[xx] Penson v. Ohio, 488 U.S. 75 (U.S. 1988)

[xxi] McKaskle v. Wiggins, 465 U.S. 168 (U.S. 1984)

[xxii] United States v. Mitchell, 484 F.3d 762 (5th Cir. Tex. 2007)

[xxiii] United States v. Acosta, 475 F.3d 677 (5th Cir. Tex. 2007)