Texas Wesleyan Law Review

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The first part of this essay examines the development of harmless error law and its application to cases involving evidence of the type implicated in wrongful convictions. The second part will look at how harmless error analysis can be reinvigorated to take into account the Innocence Project findings. This will require more than tinkering with the standards; it may mean relying less on judicial speculation about the effect of an error. Some inquiries might require remand hearings where additional evidence can be admitted to determine the importance of an error to the verdict or the strength of the remaining untainted evidence. Appellate courts are reluctant to find error prejudicial, and have erected barriers to such findings. But since we provide direct appeals at public expense, what better way to spend those resources than on what should matter most: determining whether the right person has been convicted? It is time for a better-informed harmless error standard that incorporates the lessons of the last three decades about the realities of criminal justice.



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