February 2007 Vol. 105 No. 4 THE REVIEW

Mostly Harmless: An Analysis of Post-AEDPA Federal Habeas Corpus Review of State Harmless Error Determinations

Jeffrey S. Jacobi

Sixty years ago, in Kotteakos v. United States, the Supreme Court ruled that a small class of so-called harmless errors committed by courts did not require correction. The Court acknowledged that some judicial errors, though recognizable as errors, did not threaten the validity of criminal convictions and therefore did not require reversal. Specifically, the Court held that errors that violated federal statutes should be deemed harmless unless they had a “substantial and injurious effect or influence in determining the jury’s verdict.” While Kotteakos represented the Supreme Court’s first treatment of the concept of harmlessness, other courts had a history of preserving convictions using harmless error review. For some time before Kotteakos, state statutes had directed appellate courts throughout the country to use harmless error review, a doctrine that prevents appellate courts from disposing of convictions on technicalities, “conserve[s] judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error,” and allows courts to focus on “decid[ing] the factual question of the defendant’s guilt or innocence.”

   //  VIEW PDF
& Other Current Events

Crawford v. Washington: A Ten Year Retrospective

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation...

Come Back to the Boat, Justice Breyer!

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly...

Crawford v. Washington: The Next Ten Years

Imagine a world . . . in which the Supreme Court got it right the first time. That is,...

The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...
MAILING LIST
Sign Up to Join Our Mailing List