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Harmless Error and the “No Reasonable Possibility” Test

Posted by David Adelstein on February 07, 2015
Appeal, Burden of Proof


The terms “harmless error” and “reversible error” are well known terms in the trial and appellate world. In a nutshell, a harmless error is an error committed by the trial judge that does NOT impact the fairness of the trial; a reversible error is an error that does impact the fairness of the trial. 

A party appealing a trial judge’s ruling (appellant) aims to establish that the trial judge’s ruling, etc. amounted to reversible error. The party responding to the appeal (appellee) aims to establish that there was no error, but if there was, it was harmless. If an error amounts to reversible error, it could result in a new trial or even a reversal of the judgment.

Florida Statute s. 59.041 explains the harmless error standard:

No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.

However, what impacts a fair trial and results in a “miscarriage of justice” has long been established on a case-by-case basis. This, however, has led to uncertainty as to how to specifically define a harmless error–an error that does not result in a miscarriage of justice / the right to a fair trial–in civil matters. In other words, when does an error result in miscarriage of justice and when does it not and whose burden is it to establish the harmless error?

The Florida Supreme Court in Special v. West Boca Medical Center, 2014 WL 5856384 (Fla. 2014) addressed this exact issue in ruling that the “no reasonable possibility” test is the harmless error test to be applied to civil trials:

To test for harmless error, the beneficiary of the error [appellee] has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error [appellee] must prove that there is no reasonable possibility that the error contributed to the verdict.


[T]he application of the no reasonable possibility test for harmless error in civil appeals will serve multiple purposes. The test acts in a manner so as to conserve judicial resources while protecting the integrity of the process. Additionally, the test strikes the proper balance between the parties. While the party that seeks relief  [appellant] must still identify the error and raise the issue before the appellate court, this test properly places the burden of proving harmless error on the beneficiary of the error [appellee]. Requiring the beneficiary of the error to demonstrate that there is no reasonable possibility that the error contributed to the verdict discourages efforts to introduce error into the proceedings.

Special, supra, at *4, 5.

Thus, under the “no reasonable possibility” test: (1) a harmless error is an error in which there is no reasonable possibility that the error contributed to the verdict and (2) the party responding to the appeal (appellee) has the burden to establish that the error was harmless.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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