JurisdictionNorth Carolina

Chapter 13 Harmless Error

Errors are the insects in the world of law, traveling through it in swarms, often unnoticed in their endless procession. Many are plainly harmless; some appear ominously harmful. Some, for all the benign appearance of their spindly traces, mark the way for a plague of followers that deplete trials of fairness . . . [A]n inquiry into what makes an error harmless, though one of philosophical tenor, is also an intensely practical inquiry into the health and sanitation of the law.1

Harmless error is one of the most controversial and important doctrines of modern criminal law. It is controversial because it allows trial errors, even constitutional defects in the trial, to go unremedied. As Judge Posner famously explained in a Seventh Circuit decision, "The expansive code of constitutional criminal procedure that the Supreme Court has created in the name of the Constitution is like the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code."2 Quite often an individual may have a constitutional right, but because of the harmless error doctrine his right lacks a remedy. The significance of harmless error to modern criminal and habeas litigation likewise is easy to appreciate. It has been said that the harmless error rules determine whether the prisoner will prevail in more cases than any other doctrine. Consequently, the process of determining whether an error is harmless is central to the resolution of most habeas corpus claims.

Until the mid-1960s the doctrine of harmless error was limited to non-constitutional trial errors. Under the Federal Rules of Criminal Procedure, Rule 52(a), reversal is forbidden for all non-constitutional errors unless the error affected "substantial rights" of the defendant. It was not until the seminal case, Chapman v. California, 386 U.S. 18 (1967), that the Court addressed "whether there can ever be harmless constitutional error." The Court recognized that some constitutional violations—the denial of the right to counsel or the right to an impartial judge were among the examples given—cannot be subject to harmless error review and instead require reversal. However, the Court explicitly refused to require automatic reversal for all constitutional errors when it held that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." The Court also held that as a matter of federal constitutional law, the harmless error review of constitutional errors must be much more exacting than the harmless error review permitted for non-constitutional errors. Under the still prevailing rule of Chapman, a constitutional error is harmless or undeserving of remedy unless the reviewing court finds "beyond a reasonable doubt... that [the errors] did not contribute to petitioners' convictions."

The cases that follow trace the application and development of the harmless error doctrine in the context of constitutional errors. The first case, Greer v. Miller, illustrates the confusion surrounding the distinction between the merits of a constitutional claim and the question of whether an error is harmless under Chapman, and it foreshadows the development of an alternative to the Chapman standard. The next case, Arizona v. Fulminante, addresses the crucial question left open in Chapman: how does a court determine whether a constitutional error is subject to harmless error review. The third case, Brecht v. Abrahamson, considers whether the Chapman harmless-error analysis applies to habeas corpus proceedings. The final case, Fry v. Pliler, attempts to reconcile the Brecht and Chapman rules with Section 2254(d) of the Anti-Terrorism and Effective Death Penalty Act.

Greer v. Miller
483 U.S. 756 (1987)

JUSTICE POWELL delivered the opinion of the Court.

The question before us is whether a prosecutor's question at trial concerning a criminal defendant's post-arrest silence requires reversal of the defendant's conviction.


In 1980, Neil Gorsuch was kidnapped, robbed, and murdered after leaving a bar in Jacksonville, Illinois. Three men were charged with the crimes: Randy Williams, Clarence Armstrong, and the respondent, Charles Miller. Williams confessed, and later entered into a plea agreement under which most of the charges against him were dropped in return for his testimony at the separate trials of Armstrong and Miller.

At Miller's trial, Williams testified that he, his brother, and Armstrong had met Gorsuch in a tavern on the evening of February 8. Armstrong offered the victim a ride back to his hotel, and the four men left together at about 1:30 a.m. After Williams' brother was dropped off, Armstrong began beating Gorsuch in the back seat of the car. According to Williams' testimony, the group stopped briefly at Williams' parents' home to pick up a shotgun, and the men then drove to the trailer home where Miller was staying. Williams testified that Miller joined the group, and that they then traveled to a bridge on an isolated road. Williams stated that once there each of the three men shot Gorsuch in the head with the shotgun.

Respondent Miller took the stand on his own behalf and told a different story. On direct examination he testified that he had taken no part in the crime, but that Armstrong and Williams had come to the trailer home after the murder was committed seeking Miller's advice. Miller testified that Armstrong confessed that he and Williams had beaten and robbed Gorsuch, and that they had killed him to avoid being identified as the perpetrators.

The prosecutor began his cross-examination of Miller as follows:

Q: Mr. Miller, how old are you?
A: 23.
Q: Why didn't you tell this story to anybody when you got arrested?

Defense counsel immediately objected. Out of the hearing of the jury, Miller's lawyer requested a mistrial on the ground that the prosecutor's question violated Miller's right to remain silent after arrest. The trial judge denied the motion, but immediately sustained the objection and instructed the jury to "ignore [the] question, for the time being." The prosecutor did not pursue the issue further, nor did he mention it during his closing argument. At the conclusion of the presentation of evidence, defense counsel did not renew his objection or request an instruction concerning the prosecutor's question. Moreover, the judge specifically instructed the jury to "disregard questions ... to which objections were sustained." Miller was convicted of murder, aggravated kidnapping, and robbery, and sentenced to 80 years in prison.

On appeal the State argued that if the prosecutor's question about Miller's post-arrest silence was prohibited by this Court's decision in Doyle v. Ohio, 426 U.S. 610 (1976), the error was harmless under the standards of Chapman v. California, 386 U.S. 18 (1967). The Illinois Appellate Court rejected the argument and reversed the conviction, concluding that the evidence against Miller "was not so overwhelming as to preclude all reasonable doubts about the effect of the prosecutor's comment." The Supreme Court of Illinois disagreed and reinstated the trial court's decision. The court noted that the prosecutor's question was an isolated comment made in the course of a lengthy trial, that the jury had been instructed to disregard the question, and that the evidence properly admitted was sufficient to establish Miller's guilt beyond a reasonable doubt. It therefore held that the error did not require reversal of the conviction.

Miller then filed a petition for a writ of habeas corpus in the Federal District Court for the Central District of Illinois. The District Court denied the petition, finding "no possibility that the prosecutor's questioning on post-arrest silence could have contributed to the conviction." A divided panel of the Court of Appeals for the Seventh Circuit reversed the District Court's decision, as did the full court on reargument en banc. The en banc court found that because Miller had received Miranda warnings at the time of his arrest for the offenses in question, "[t]he prosecutor's reference to Miller's silence at the time of his arrest . . . violated his constitutional right to a fair trial." The court further held that the error was not harmless beyond a reasonable doubt under Chapman v. California because "[t]he evidence against Miller was not overwhelming, his story was not implausible, and the trial court's cautionary instruction was insufficient to cure the error." Three judges dissented, concluding that under the harmless-error standard, "this fifteen-second colloquy, alleviated by the trial judge's immediately sustaining the defendant's objection and instructing the jury to ignore the prosecutor's improper question and by a threshold jury instruction to disregard questions to which objections were sustained, did not affect the verdict." Judge Easterbrook also dissented. In his view, the harmless-error standard of Chapman is too stringent to be applied to this case for a number of reasons: the rule of Doyle is prophylactic rather than innocence-protecting; the issue is presented on collateral, rather than on direct, review; the error in this case could have been cured more fully had defense counsel so requested at trial; and the violation should be viewed as prosecutorial misconduct that requires reversal only if it rendered the trial fundamentally unfair.

We granted certiorari to review the Court of Appeals' determination that the prosecutor's question about the criminal defendant's post-arrest silence requires reversal of the conviction in this case. * * * We disagree with the Court of Appeals and now reverse.


The starting point of our analysis is Doyle v. Ohio, 426 U.S. 610 (1976). The petitioners in Doyle were arrested for...

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