Harmless Error

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Until the 1900s most common law courts did not have any harmless error analysis. The prevailing rule for error was known as the Exchequer Rule. Under the Exchequer Rule any trial error on the admission of evidence created an automatic presumption of error requiring a new trial. Throughout the 1800s this rule provided defendants with ample grounds for appeal. However the Exchequer Rule came under sharp criticism as being overly technical. In 1919, a federal statute was adopted requiring courts to examine the entire record, disregarding technical errors which did not substantially affect the rights of the parties.

When to apply the harmless error test

The first step of an appellate court is to determine whether the harmless error test will apply to any given error. Some errors, such as a violation of the right to counsel, do not require harmless error analysis. Mere proof of error will require a remand of the case for a new trial. Following is a list of errors that may trigger harmless error analysis in the United States:

  • Erroneous admission of evidence in violation of defendant's Fourth Amendment rights.
  • Erroneous admission of coerced confession
  • Erroneously jury instructions

On the other hand, a denial of the right to counsel at any part of the trial phase will result in automatic reversal of the case.

How to apply the harmless error test

The actual test for whether a given error was harmless has been phrased differently.

Under the "correct result" test the appellate court will consider all admissible evidence (defense and prosecution)to determine if the jury's verdict was clearly correct.

This test was rejected by the U.S. Supreme Court in Kotteakos v. United States.[1] The court in Kotteakos stated:

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance, after pondering all that happened without striping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.

A third test, formulated by the Pennsylvania Supreme Court instructs the appellate court to reverse if they are convinced "beyond a reasonable doubt" that there is no "reasonable probability" that the error contributed to the verdict.[2]

See Appeals, Error


  1. 328 U.S. 750 (1946)
  2. Commonwealth v. Story, 476 Pa. 391 (1978)