§ 6.12 Harmless Error

• Jurisdiction: North Carolina

§ 6.12 Harmless Error

In determining whether to reverse a trial court judgment, appellate courts must decide whether an evidentiary error is harmless or prejudicial (reversible). Under Rule 103(a), a case will not be reversed on appeal because of an erroneous evidentiary ruling unless (1) the ruling involves a "substantial right" and (2) the other procedural requirements of Rule 103, such as timely objection, have been satisfied.⁹⁶ The term "substantial right" is not defined in the rule, but it refers to the harmless error doctrine.⁹⁷

Rationale. The harmless error doctrine is based on a common sense acknowledgment that a trial without error is not humanly possible; a trial judge has to make too many decisions, often at the spur of the moment. If the judge erroneously admits a hearsay statement in the third week of a ten-week trial, should the defendant automatically be entitled to a new trial? We simply do not have the resources to insist upon errorless trials. As the Supreme Court has noted in criminal cases, the defendant is entitled to a fair trial, not a perfect one.⁹⁸ However, the rules governing harmless error are not without problems. Anyone reading the appellate opinions on evidentiary issues will quickly come to the conclusion that "reversible error" is a rare commodity, even in some egregious cases.

Standards. Different harmless-error tests are used in criminal and civil cases. In criminal trials, errors involving constitutional rights are judged by a high standard—proof "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."⁹⁹ The Supreme Court has applied this test in numerous cases.¹⁰⁰However, some rights are considered "structural" (e.g., right to counsel) and therefore are subject to automatic reversal, not harmless-error analysis. Non-constitutional errors in criminal cases are supposed to be judged by a lower standard,¹⁰¹ and civil cases use somewhat different formulations.¹⁰²

One court explained it this way: "A number of factors have guided the courts in their determinations of whether error is harmless, including (1) whether erroneously admitted evidence was the primary evidence relied upon, (2) whether the aggrieved party was nonetheless able to present the substance of its claim, (3) the existence and usefulness of curative jury instructions, (4) the extent of jury argument based on tainted evidence, (5) whether erroneously admitted evidence was merely cumulative, and (6) whether other...