Document Type

Article

Publication Title

Journal of Criminal Law and Criminology

Abstract

This article discusses the harmless error standard of the U.S. Supreme Court for habeas corpus cases. The Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under the rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. In the decision on the case Brecht versus Abrahamson in 1993, a majority of the Court ruled that a new and different measure of harmless error should apply in federal habeas corpus proceedings. The applicable standard is the one the Court fashioned in 1946 in Kotteakos versus U.S. for assessing the harmlessness if the reviewing court finds that the error did not influence the jury, or had but very slight effect and that the judgment was not substantially swayed by the error. The case fits a pattern apparent in much of the Court's effort to curb habeas corpus judicially and piecemeal in the face of the refusal of Congress to reform the writ more systematically.

First Page

1109

Volume

84

Publication Date

1994

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