Harmless error: when a mistake at trial isn't enough
Courts reverse for errors that changed the result, not for every error. Here's how we test a mistake before we recommend an appeal.
Almost every trial has mistakes in it. A question that shouldn't have been allowed, an instruction worded badly, a remark in closing. The hard part of an appeal isn't finding an error. It's showing the error mattered.
The question the court asks
For most errors, the court asks whether it's reasonably likely the result would have been different without it. For some errors that touch constitutional rights, the burden flips: the prosecution must show the error was harmless beyond a reasonable doubt. A few errors, like the denial of counsel, need no showing at all.
How we test an error
- Was it preserved: did trial counsel object, and say why?
- Which standard of review applies to it?
- How strong was the rest of the evidence on that point?
- Did the error touch the very fact the jury had to decide?
An error that bears on the one disputed fact in a close case is worth a brief. The same error in a case with overwhelming evidence may not be, and we'll tell you that before you spend money on it.
The best issue on appeal is rarely the one that felt worst in the courtroom.
When the error isn't in the record
If the mistake was something trial counsel failed to do, the record may not show it. Those claims usually go in a habeas petition, with declarations that explain what happened. Our post-conviction page covers how that works.
Standards vary by court and by the kind of error. This is general information, not advice on your case.