Georgia Appeals Law Guide / Appellate Law Treatise

Harmless Error

Error alone is not grounds for reversal; the error must also have prejudiced the appellant’s case. An error that did not prejudice the appellant’s case is usually “harmless error,” which will not cause an appeals court to disturb the lower court’s decision. An error that did prejudice the appellant’s case is usually “reversible error.”

The harmless error doctrine is somewhat similar to the requirement of standing. For any dispute to be justiciable, a party must have suffered some injury; courts will not decide theoretical questions. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Granite State Outdoor Adver., Inc. v. City of Roswell, 283 Ga. 417 (658 SE2d 587) (2008). The Georgia appeals courts have applied some of the same reasoning in considering harmless error: “When [an appellant] brings a case here he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” Brown v. City of Atlanta, 66 Ga. 71, 76 (1880), quoted in Thomas v. Emory Clinic, Inc., 321 Ga. App. 457, 460 (739 SE2d 138) (2013). Standing relates to jurisdiction and is required for a court to have authority to decide a case. See Sherman v. Dev. Auth. of Fulton Cnty., 749 SE2d 29 (Ga. App. 2013) (considering standing sua sponte and dismissing appeal for lack of standing).

The harmless error doctrine is also pragmatic. Reaching a conclusion in a case, especially after a jury trial, requires a substantial expenditure of resources. Appeals courts conserve resources by overturning lower court decisions only if there is reason to believe the decision would have been different if the error had not been made. Remanding a case for new proceedings also delays the final result in the case. Appeals courts further the interest in speedy resolution of disputes by reversing only for harmless error. See Taylor v. Schander, 207 Ga. App. 627, 629 (428 SE2d 806) (1993)(Beasley, J., concurring specially) (“if the trial court’s error is harmless in that review of the entire record, which is the mandated procedure, would lead to the same result reached erroneously, then requiring the erring court to reconsider the motion wastes judicial resources and delays finality”) (citing Miller Grading Contractors, Inc. v. Georgia Fed. Savings & Loan Ass’n, 247 Ga. 730 (279 SE2d 442) (1981)).

Harmless error review in Georgia is governed in part by OCGA § 9–11–61, which provides in full: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

Several jurists have expressed concern that the harmless error rule allows prosecutors too much leeway to make inappropriate comments at trial, knowing that such conduct will likely be found immaterial on appeal in light of the evidence sustaining the verdict. See Lampley v. State, 284 Ga. 37 (663 SE2d 184, 188) (2008) (Melton, J., concurring specially) (noting “concern that harmless error has become an escape route for any error created by the State’s inappropriate comments on a defendant’s pre-arrest silence, regardless of the proportional strength of the evidence presented of a defendant’s guilt”); Jackson v. State, 282 Ga. 494, 501 (651 SE2d 702) (2007) (Hunstein, P.J., dissenting) (“[T]he majority refuses to hold the State accountable by, yet again, excusing this misconduct as harmless under the rubric of ‘overwhelming evidence.’”). The effect of the harmless error doctrine is to make many types of error effectively unreviewable in cases where the evidence is strong.

There are exceptions to the harmless error rule. For example, a court’s determination that it has jurisdiction is reviewable even without a showing of prejudice. In a criminal case, a judge’s expression or intimation as to what has been proved or the guilt of the accused is also cause for reversal even without prejudice. See OCGA § 17-8-57; Review & Error > Standards of Review > Plain Error.

Harmless beyond a reasonable doubt

In a criminal case, a violation of a defendant’s federal constitutional rights causes reversal unless it is harmless beyond a reasonable doubt. See Ellington v. State, 292 Ga. 109, 138 (735 SE2d 736) (2012) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).

“Highly probable” that error was harmless

In Johnson v. State, the Georgia Supreme Court adopted the “highly probable test” for evaluating nonconstitutional errors in criminal cases. 238 Ga. 59, 61 (230 SE2d 869) (1976). Such errors will cause reversal unless it is “‘highly probable that the error did not contribute to the judgment.’” Id. (quoting Traynor, What Makes Error Harmless, The Riddle of Harmless Error (1970)).

Admission of cumulative evidence

Erroneous admission of evidence is harmless when it is “cumulative of legally admissible evidence showing the same fact.” Degolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 450 (662 SE2d 141) (2008).

Curative instructions

Any curative instructions given to the jury may reduce the prejudicial effect of an error, and therefore make it more likely that an appeals court will find the error harmless. See, e.g., Kohler v. State, 300 Ga. App. 692 (686 SE2d 328, 332) (2009).

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