Helen A. Anderson, Revising Harmless Error: Making Innocence Relevant to Direct Appeals, 17 Tex. Wesleyan L. Rev. 391 (2011), https://digitalcommons.law.uw.edu/faculty-articles/217
Texas Wesleyan Law Review
appeals, harmless error
In most jurisdictions, convicted defendants have the right to an appeal at public expense, and to the assistance of counsel with that appeal. But the direct appeal is almost never concerned with actual innocence. On direct appeal, courts will look at claims of trial error, and evaluate those claims and their "harmlessness" based only on the trial record. Thus, the chances of a reversal on direct appeal bear no relation to the chances that the wrong person has been convicted.
While the current appeal system may encourage proper trial procedures, it does not provide a check against wrongful conviction. The disconnect between appeals and actual innocence is ironic, since most jurisdictions provide funding for direct appeals, but not for collateral attacks where claims of actual innocence can be litigated.
This article will focus on just one aspect of appellate review that could be made more likely to provide relief to the innocent through more reliable fact-finding: the harmless error analysis. It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal. Although the focus of such inquiries was originally on whether the error contributed to the verdict, in time courts have come to see it more as whether the defendant is guilty: an evolution from what some have called an "effect-on-the-verdict" to a "guilt-based" approach.' Yet even in reviewing the evidence of guilt under various harmless error standards, appellate courts do not adequately consider what we have learned about evidence of guilt from DNA exonerations.
The first part of this essay examines the development of harmless error law and its application to cases involving evidence of the type implicated in wrongful convictions. The second part will look at how harmless error analysis can be reinvigorated to take into account the Innocence Project findings. This will require more than tinkering with the standards; it may mean relying less on judicial speculation about the effect of an error. Some inquiries might require remand hearings where additional evidence can be admitted to determine the importance of an error to the verdict or the strength of the remaining untainted evidence.
Appellate courts are reluctant to find error prejudicial, and have erected barriers to such findings. But since we provide direct appeals at public expense, what better way to spend those resources than on what should matter most: determining whether the right person has been convicted? It is time for a better-informed harmless error standard that incorporates the lessons of the last three decades about the realities of criminal justice.