Can Constitutional Error be Harmless?

Abstract

Chapman v. California held that federal constitutional error in a state criminal proceeding does not require reversal if the state can establish that the error was harmless. Writing about Chapman several years after it was decided, Professor DanielJ. Meltzer observed that in fact the case had decided two propositions: first, that constitutional errors can be deemed harmless; and second, that federal law determines the issue of harmlessness. Professor Meltzer then focused exclusively on the second proposition, concluding that it was sound. We focus here on the first proposition and demonstrate that harmless error doctrine is conceptually incoherent. We argue that in view of this incoherence, constitutional errors ought not to be subject to harmless error review. In short, Chapman should be overruled.