"Harmless constitutional error" is among the most insidious of legal doctrines. Since its promulgation by the United States Supreme Court in Chapman v. California, it has determined as many criminal appeals as have some of the more well-known and hotly debated decisions of the 1960s. Despite the frequency of its use in determining criminal appeals-possibly as high as ten percent of all criminal appeals during the last thirteen years it has received comparatively little critical attention. The reason for the inattention? It's a sneak thief. Its appearance does not raise apprehension, and its application does not leave concentrated areas of obvious constitutional damage. The doctrine does not aim at any closely guarded right. It poses no consistent doctrinal challenge to important judicial determinations; nor does it consistently affect any police practice. Further, it looks like the helpful, familiar doctrine of harmless error. The purpose of this article is to demonstrate that the doctrine of harmless constitutional error destroys important constitutional and institutional values and therefore should be discarded.
Steven H. Goldberg, Harmless Error: Constitutional Sneak Thief, 71 J. Crim. L. & Criminology 421 (1980), available at http://digitalcommons.pace.edu/lawfaculty/84/.