The Riddle of Harmless Error Revisited

Half a century ago, in Chapman v. California, the Supreme Court imposed on appellate courts an obligation to vacate or reverse criminal judgments marred by constitutional error unless the government demonstrates that the error was harmless beyond a reasonable doubt. But the Court did not explain the juridical status of this obligation or its relation to the federal harmless‑error statute, 28 U.S.C. § 2111. In the intervening years, commentators have struggled to make sense of Chapman. Some see it as a constitutional mandate. Others view it as an example of constitutional common law. In The Riddle of Harmless Error, written shortly after Chapman issued, Justice Roger Traynor argued that § 2111 should govern the field that Chapman occupies.The lack of clarity about Chapman’s pedigree has had the predictable consequence of leaving harmless‑error doctrine in an unsatisfactory state. Most basically, the Court has adopted a harmless‑error test that unduly privileges constitutional error vis‑à‑vis nonconstitutional error. Moreover, the Court has prescribed application of an easily manipulated jurisprudence of labels to determine whether an error is amenable to harmless‑error review. Finally, the Court has unnecessarily complicated the application of harmless‑error analysis on collateral review and, along the way, shown insufficient regard for rule‑of‑law values.This Article takes a fresh look at what the Constitution requires of reviewing courts when they conclude that a criminal judgment has been tainted by constitutional error. It suggests that new insights may be found by situating harmless‑error doctrine within a broader, transcontextual analysis of how constitutional remedies function. It then demonstrates how understanding what the Constitution requires of reviewing courts can serve as a springboard for necessary reform. Ultimately, it argues that the Supreme Court can and should jettison Chapman in favor of a simplified, unitary, and transcontextual harmless‑error test — reconceived as an elaboration of 28 U.S.C. § 2111 — that largely tracks the approach for which Justice Traynor argued. Under this test, a reviewing court would set aside any conviction tainted by error unless it concludes that it was highly probable that the error did not affect the judgment. A reviewing court also would set aside any conviction tainted by error if the error undermined fundamental constitutional values.