The proper test of harmlessness of nonconstitutional error is whether an appellate court can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error. A court must be mindful that it does not ask simply whether it believes that irrespective of the error there was sufficient untainted evidence to convict but, more stringently, whether it believes it highly probable that the error did not affect the judgment.
Nigel D. Ince was convicted by a jury for assault with a dangerous weapon, with intent to do bodily harm. He challenged his conviction for assault with a dangerous weapon, contending that it was reversible error to admit his alleged confession in order to impeach the credibility of a government witness.
Was it reversible error to have admitted for impeachment purposes an otherwise inadmissible confession?
The Court reversed the conviction and remanded the case for a new trial. The Court considered three factors in determining whether it was highly probable that the admission of the confession affected the conviction: (1) the centrality of the issue affected by the error; (2) the steps taken to mitigate the effects of the error; and (3) the closeness of the case. The identification of the defendant was the only controverted evidence in the case and it was probable that the jury was unable to follow the district court's instruction on impeachment by prior inconsistent statement or apply it to the testimony, particularly when the prosecutor in closing argument asked the jury to accept the confession as true. Because the tainted evidence was a confession and the first trial ended in a deadlocked jury, the Court concluded that the case was sufficiently close that the erroneous admission of defendant's alleged confession was not harmless under Fed. R. Crim. P. 52(a).