Indiana's Probable-Impact Test for Reversible Error


  • Edward W. Najam, Jr.
  • Jonathan B. Warner



This Article addresses the operation and effect of the reversible-error doctrine under the Indiana Rules of Appellate Procedure when applied to the review of non-constitutional trial court errors. In particular, this Article reviews the history of Indiana’s standards for reversible error under the Indiana Rules of Appellate Procedure and demonstrates that the Indiana Supreme Court adopted the probable-impact test to enable the court on appeal to assess whether it can say with confidence that the error more likely than not affected the outcome of the trial court proceeding. Specifically, this Article reviews the history leading up to the adoption of Indiana Appellate Rule 66(A), the text of that Rule, how the Indiana Supreme Court applied the probable-impact test in the seven years
following the court’s adoption of the Rule, and how later opinions from the court have clarified the probable-impact test. However, some variance in the application of the probable-impact test has both persisted and re-emerged, and this Article identifies those deviations in the case law. This Article then concludes with advice for practitioners to tailor their arguments around the probable-impact test.