The Harmless and Plain Error Doctrines - History and Analysis



The law on the analysis to be used by appellate courts in reviewing alleged trial and procedural errors in criminal cases, both federal and state, is very complex and often poorly understood by both lawyers and judges. Even the U.S.

Supreme Court has had difficulty developing and articulating appropriate governing principles.

This is a document for lawyers and judges, primarily prosecutors and criminal defense lawyers and judges who preside over criminal cases. It is a modified portion of an appellate brief I wrote for a Colorado criminal appeal, but as the text indicates, the general principles are applicable in virtually all states.

Of course. non-lawyers,including law students, are free to consult it.

As with all documents I post, this document does not express any opinion on the law of any jurisdiction (even though this was written as a portion of a Colorado appellate brief), and all such opinions are expressly disclaimed. Application of these principles is highly fact and issue specific, and this analysis was written in the context of an appeal of a trial court decision on a highly specific procedural issue.

Furthermore, the law on harmless and plain error remains unsettled. It is critical to consult the most recent case law,

particularly the most recent decisions of the U.S. Supreme Court, when addressing these issues.

Users who are not criminal lawyers or judges who preside over criminal cases are urged to consult competent counsel on these issues.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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