Comment: The Harmless Constitutional Error Rule in Washington: What It Was, What It Is, And What It Should Be

“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.” R. Traynor, The Riddle Of Harmless Error (1970).

Where constitutional error occurred in a criminal trial in which the accused has been found guilty, the defendant’s attorney will doubtless spend considerable energy on appeal in trying to convince an appellate court that such error was committed. The attorney’s objective will be to obtain reversal of the conviction. Whatever the violation of the accused’s constitutional rights may have been, substantive doctrinal bases from a variety of sources exist to assist the attorney in arguing his point and to aid the appellate court in reaching a legally correct result.

However there exists a rule which can “blind-side” the attorney and allow affirmance of a judgment even where clear violations of the accused’s constitutional rights occurred at trial. That is the harmless constitutional error rule, first announced in Chapman v. California . In Chapman, the United States Supreme Court recognized that constitutional errors could be deemed harmless, and therefore not require reversal, if the appellate court could find “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” The apparent expansion of this rule, and its increased use, merit some attention. Likewise the recent case of State v. Guloy should be of particular interest to Washington judges and practitioners because it attempts to clear up the issue of which test appellate courts must use when determining if constitutional error is harmless, thereby allowing affirmance, or harmful, which would require reversal.

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Pat Delfino, Comment, The Harmless Constitutional Error Rule in Washington: What It Was, What It Is, And What It Should Be, 20 Gonz. L. Rev. 429 (1985).

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