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Appellate Procedure – Harmless Error Analysis, Generally

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School


¶47      In determining whether a constitutional error is harmless, the inquiry is as follows: “‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?'” State v. Harvey, 2002 WI 93, ¶46, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). This court also has formulated the test for harmless error in alternative wording. Under Chapman v. California, the error is harmless if the beneficiary of the error proves “‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'” State v. Anderson, 2006 WI 77, ¶114, 291 Wis. 2d 673, 717 N.W.2d 74 (quoting Chapman v. California, 386 U.S. 18, 24 (1967), reh’g denied, 386 U.S. 987 (1967)). [6] While we recognize that this court recently has formulated the harmless error test in a variety of ways, whichever formulation is applied, we are satisfied that the error here was harmless for the reasons hereafter set forth. Anderson, 291 Wis. 2d 673, ¶114.

The dissent in Harvey asserted, ¶¶73-75, that the very two formulations in the above quote are indeed different (“The first inquires whether the constitutional error contributed to the conviction, while the second inquires whether the untainted evidence provides overwhelming support for the conviction.”). The quote above doesn’t address this problem.

¶48      This court has articulated several factors to aid in harmless error analysis. These factors include the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State’s case, and the overall strength of the State’s case. State v. Hale, 2005 WI 7, ¶61, 277 Wis. 2d 593, 691 N.W.2d 637.

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