Confrontation Clause - Harmless Error and Standards of Review

Harmless Error and Standards of Review

Confrontation Clause violations are usually subject to harmless error review. This means that even if evidence has been admitted in violation of the Confrontation Clause, a defendant is not entitled to a new trial if the reviewing court is convinced beyond a reasonable doubt that the inadmissible evidence did not contribute to the verdict. Harmless error is not a standard of review, and is an analysis for whether the error might have affected the jury's decision.

Where a defendant fails to object to the inadmissible evidence at the time of trial or fails to specify that she or he is objecting on Confrontation Clause grounds, the reviewing court will sometimes only review for more substantial errors such as "plain error" or an error that results in a manifest injustice. Federal Circuit Courts of Appeal review unobjected to Confrontation Clause errors for plain error. State courts vary widely in their requirements for reviewing Confrontation Clause errors, but many review for either plain error, manifest injustice, or another similar standard. In many instances, courts reverse on Confrontation Clause grounds without analyzing whether an error is harmless. The most common reason for omitting such an analysis is the government's failure to raise harmlessness as an issue. Generally, defendants do not raise harmlessness unless the government does so.