13-b-3 The Harmless Error Rule

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

13-B-3. The Harmless Error Rule

(a) General

Once you have established that there was a violation, you will also need to show that you were actually harmed by the violation. When you present your habeas petition, the State will likely argue that even though a violation occurred, the violation did not actually harm you in your trial, and therefore was a "harmless error." If the court finds that the violation did not cause "actual prejudice" to your case, it will conclude that the error was harmless, and habeas relief will not be granted. 38

While the "actual prejudice" standard applies to all federal habeas claims, state prisoners will also need to overcome the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") standard, which limits federal courts' ability to grant habeas relief when reviewing claims from state prisoners. This standard is described in further detail in Section (h) below.

(b) The State must say that the error was harmless in a clear and timely manner

While you will likely have to overcome the State's defense that the error was harmless, the court will not automatically assume that the State has made this argument. Rather, the State must come forward affirmatively plead (come forward and say) that the violation was a "harmless error."39 This is called "raising the 'harmless error' issue" or "raising the 'harmless error' defense." If the prosecution does not raise the harmless error issue in a clear and timely manner, it is "waived" (lost), and the court will assume that the violation caused you actual harm. This generally means that the State must raise the "harmless error" defense in its response to your habeas petition.40 Ultimately, however, it is likely that the State will raise this defense, so you should be sure to explain in your petition how the error harmed you and show how it affected the jury's decision-making.

(c) Standard of review

The "standard of review" is the level that the trial court's error must reach in order for the habeas court to overturn its verdict. To determine whether the error was harmless, courts will generally ask whether the error "had a substantial and injurious effect or influence in determining the jury's verdict."41 In other words, the court will ask whether the error substantially influenced the jury's decision that you were guilty, either by keeping you from defending yourself or by convincing them of your guilt. If the court finds that it did, it will likely grant habeas relief. If, on the other hand, the court finds that it had only a "slight effect" on the jury, no relief will be granted.42 The only exception to this is if your petition is subject to the AEDPA standard, (if you are a state prisoner) which is described in further detail in Section (h) below.

(d) Burden of proof and degree of certainty

The State "bears the burden" of demonstrating that the error was harmless. 43 This means that, if the State cannot come forwards and convince the judge that the error was harmless, relief must be granted. The key question is: how certain must the judge be that the error caused you actual harm in order to grant relief? How certain the judge must be is is called the "degree of certainty." It is helpful to think of the required degree of certainty along a spectrum, from "possible" that the error was harmful at the low end, to "beyond a reasonable doubt" at the high end. In Davis v. Ayala, the Court notes that it is not enough for you to show that there was a "reasonable possibility" that the error was harmful.44 On the other hand, it is not necessary for you to prove that the error was harmful beyond a reasonable doubt, or even that it was "more probable than not" that it was harmful.45

Instead, the minimum threshold that courts will use is the "grave doubt" standard, which is somewhere towards the middle of that spectrum. This test says that if the judge reviewing your case is in "grave doubt," meaning he cannot decide if an error had a "substantial and injurious effect," then he must find that the error was not harmless.46 In other words, if in the judge's mind, the matter is ties and he is unsure whether the error is harmless or not, he must rule in your favor (that the state has not met its burden of proof). Since the State bears the burden of proving that the error was harmless, the judge must grant you relief in this case.47 Of course, any degree of certainty above this threshold (for instance, if the judge believes it is "highly likely" that the error was harmful) will also win you relief. However, anything below this threshold (for instance, if there is merely a "reasonable possibility" that the error was harmful) will not be sufficient.

(e) Factors to be considered

Judges are likely to consider the context when making a harmless error determination. Among the factors that might be considered are:48

(1) The nature of the right at issue;

(2) How severely violations of that right are likely to affect the jury's deliberations;

(3) What is at stake;

(4) The phase of the trial affected by the error;

(5) The seriousness of the violation;

(6) The centrality of the error to the case (how big of a role the error played in your trial);

(7) The frequency of the violation during trial,

(8) Whether the error resulted in the exclusion or omission of evidence that could have influenced the jury's deliberations or whether the...

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