ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW
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| ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW |
ARTICLE
A CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW
Realized by: Sarah
aggaou
Researcher at the Faculty of Law,
Agdal, Rabat
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INTRODUCTION
criminal
procedure, extensive case law, and statestatutes. It comes into use when a
litigant appeals the decision of a judge or jury, arguing that an error of law
was made attrial that resulted in an incorrect decision or verdict. The
appellate court then must decide whether the error was seriousenough to strike
down the decision made at trial.review for harmless error involves a
complicated test that applies to stateand federal laws as well as rules of
procedure. If an error is held to be serious, the appellate court is likely to
set aside the decision of the trial court and may order a new trial. If it
deems the error harmless, the appellate court affirms the lowercourt’s
decision. The doctrine of harmless error thus prevents an unnecessary new trial
when the error alleget would not have affected the outcome at trail[1].
Harmless
error jurisprudence grew out of a late-nineteenth-century development in
english law. Before 1873, englishcourts automatically reversed decisions in
cases where an error was committed at trial. In 1873, parliament put an end to
thispractice in civil cases by permitting reversals only in cases of
susbstantial error. As the author raymond A. kimble has noted, u.s .law slowly
adopted the idea in order to limit the number of retrials in u.s.courts[2].
In 1919, congress first applied
the harmless error doctrine to appellate courts, ordering them « to give
judgment afteran examination of the record without regard to errors or defects
which do not affect the substantial rights of the partie ». by the
midtwentieth century, harmless error jurispudence was growing. The court in
chapman ruled that defendants were not necessarily entitled to a new trial
simly because constitutional violations had occurred at triam. Itdirected
appellate courts to dismiss arguments about certain constitutional errors when
these:
« are so unimportant andinsignificant
that they may, comsistent with the federal constitution, be deemed harmless,
not requiring automatic reversal of a conviction »[3].
The Court has been faithful to the belief
that the harmless-error doctrine is essential to preserve the “principle that
the central purpose of a criminal trial is to decide the factual question of
the defendant’s guilt or innocence, and promotes public respect for the
criminal process by focusing on the underlying fairness of the trial rather
than on the virtually inevitable presence of immaterial error.”[4]
[T]he
Court in pursuing the theme of guilt/innocence must beware lest a dominant
value become an exclusive one; lest a functional inquiry into a right’s
consequences for accuracy crystallize a functionalist reduction of the right’s
content[5].
A
court using the method I propose would begin by identifying the interest (or
range of interests) protected by whichever procedural rule was infringed. The
interests that underpin various rules in criminal procedure are not all cut
from the same cloth, as noted above, and the interests that are relevant to
harmless error review in each case would reflect this variability. This is the
first sense in which the style of harmless error analysis I envision is
contextual[6].
After
discerning the pertinent universe of legally protected interests, a court would
conduct contextual harmless error review, in accord with the principle that
remedies should generally correspond to “the nature of the interests that
comprise the rights” they are meant to enforce[7].
The court would balance the redressable harm caused by the error against the
social cost of reversal and reverse if the former outweighs the latter. The
harm engendered by error of course varies from one case to the next, as does
the cost of reversal, which depends substantially on the type of reversal (in
the broad and nontechnical sense in which I am using that term) sought by the defendant[8].
Shifting
from the current result-based harmless error regime to the one I propose would
have far-reaching benefits. Perhaps the most important effects of the reform I
advocate relate to the large group of cases in which reviewing courts find that
the prosecution presented overwhelming evidence against the defendant apart
from and untainted by the error. Result-based harmless error rules almost
universally forbid reversal in these situations, no matter how egregious the
error, on the theory that the factfinder most likely would have rendered the
same decision based on the untainted evidence had the error not occurred[9].
By disassociating the defendant’s entitlement
to reversal from the gravity of the error in cases where the untainted evidence
is overwhelming, result-based harmless error review gives prosecutors and trial
judges unbridled license in those cases to commit error of the very worst kinds
without risking reversal[10].
My
proposal would alleviate this problem by leaving reversal on the table
regardless of how strong the prosecution’s untainted evidence might be. This is
not to say that the strength of the prosecution’s case would be irrelevant.
Insofar as the errors under review implicate only truth-furthering interests —
or non-truth-furthering interests that are result-correlated in the sense
described below[11]
— contextual harmless error analysis would yield outcomes similar or even
identical to those produced by the current result-based rules. And even for
errors that impinge on non-truth-furthering interests that are
result-independent (again, as defined below[12]),
the reliability of the untainted evidence retains some relevance to contextual
harmless error review because it is generally more costly to reverse an outcome
backed by compelling evidence than an outcome that has weaker evidentiary
support.
But
a contextual approach to harmless error review would not automatically treat
the existence of overwhelming untainted evidence as dispositive with respect to
rules that protect result-independent interests. No matter how compelling the
evidence against the defendant, a court applying contextual harmless error
review would still need to consider whether the error harmed result-independent
interests to a degree warranting reversal[13].
Despite
all this, I acknowledge that there are plausible arguments in favor of
retaining the result-based harmless error regime. One might defend it, for
example, on the grounds that (1) injuries to resultindependent interests,
though regrettable, are rarely if ever important enough to justify reversal,[14]
(2) result-based harmless error review achieves a satisfactory level of
systemic compliance with the law by disincentivizing errors caused by a desire
to tilt the result in the prosecution’s favor,[15]
and (3) civil, disciplinary, and other remedies are superior, compared with
reversal, as mechanisms for addressing errors that cause harm to interests
unrelated to the outcome.[16]
Although
these arguments are not without problems, they would hold together well enough
if there were no other viable way of approaching harmless error analysis — if,
in other words, automatic reversal were the only alternative to result-based
harmless error review. And that is certainly the impression one gets from much
of the existing literature about harmless error review. In their zeal to expand
the list of procedural errors that are completely exempt from harmless error
review of any kind, commentators have for the most part overlooked the
possibility of developing alternative methods of harmless error review that are
not result-based. As we shall see, courts grade slightly better on this
measure:
in one understudied area of
criminal procedure that deals with certain types of recusal errors, courts have
formulated a non-result-based “special harmless error test” that I regard as a
prototype for the method I propose in this Article.[17]
But courts have not adapted that test for use outside the narrow doctrinal
context in which it emerged. And the academic literature relating to harmless
error review has inexplicably failed even to notice its existence[18].
This
Article raises as many questions as it answers. My purpose is not to identify
and weigh all of the potential costs and benefits of transitioning from the
current remedial order to one organized around contextual harmless error
analysis. Rather, I intend to show that contextual harmless error review is a
normatively plausible alternative to the current result-based rules, and to lay
the groundwork for future scholarship that can systematically assess its
viability[19].
I.
THE NARROW PATHS TO REVERSAL FOR CRIMINAL PROCEDURE ERRORS
In
this Part, I advance three primary claims. First, harmless error review as
currently applied in criminal cases almost invariably focuses on whether the
error might have affected the outcome of the proceeding under review[20].
My label for this mode of inquiry is result-based harmless error review[21].
Second,
harmless error review has largely crowded out alternative pathways to reversal
such as automatic reversal and reversals based on a court’s supervisory power,
albeit without completely eliminating them. And finally, the main ideas that
commentators have put forward in their longstanding efforts to improve the law
of harmless error have not borne much fruit. Those who argue that harmless
error analysis should pay little or no heed to the prosecution’s untainted
evidence and should instead simply ask whether the error affected the outcome
propose an impossible task, as courts cannot avoid examining the error’s
context to discern its probable effect, and that context necessarily includes
the untainted evidence. Others urge courts to exempt large swaths of criminal
procedure from existing harmless error rules, but without offering any viable
replacement to sweeten the deal. Courts have balked at this proposal. If we are
to address the serious concern that “nearly ubiquitous use of a harmless error
rule focusing on the outcome of the trial . . . denigrates important
constitutional protections . . . that promote values other than the reliability
of [guilty] verdicts,” we will need to look for solutions elsewhere[22].
A.
Result-Based Harmless Error Review
This section explores how the prevailing
result-based method of harmless error review works, the principles it embodies,
and from whence it came. I argue that much of the existing case law and
commentary misunderstands important facets of the modern harmless error
doctrine’s conceptual structure. These misunderstandings have impeded efforts
to diagnose the ailment that has afflicted our courts of review and to
determine how best to cure it. Clearing up these matters at the outset will
facilitate the normative analysis that follows later in the Article[23].
Federal
courts typically apply one of three rules when conducting harmless error review
in criminal cases. These rules fairly represent the broader universe of
harmless error rules currently used by American courts, subject to a few
exceptions[24].
For most constitutional claims preserved by a timely defense objection (and
reviewed on direct appeal), Chapman v. California[25] holds that courts may declare the error
harmless only if the prosecution “prove[s] beyond a reasonable doubt that the
error . . . did not contribute to the verdict.[26]” Federal courts reviewing preserved
nonconstitutional claims, by contrast, ordinarily apply the standard set forth
in Kotteakos v. United States[27],
which asks whether the court can say with “fair assurance” that the outcome
“was not substantially swayed by the error.[28]”
(Federal courts also apply Kotteakos with respect to constitutional errors when
considering those errors on collateral review, as in Brecht v. Abrahamson[29],
rather than on direct appeal.[30]
) And the federal harmless error standard for
673, 681 (1986) (citation omitted))
Justin
Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW.from P 1791 to
1826
Court, 86 YALE L.J. 1035, 1092 (1977).
Justin
Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to
1826
[6]
Justin Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR
REVIEW.from P 1791 to 1826
of an
available remedy is clearly tied to the substantive right at issue.”).
[8]
Justin Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR
REVIEW.from P 1791 to 1826
[9] As explained below, there are
rare situations in which a court applying result-based harmless error rules
must reverse, despite the court’s opinion that the prosecution’s untainted
evidence is overwhelming, infra note 69. This
situation occurs when the record indicates that the factfinder did not find the
evidence to be overwhelming. A jury might, for example, evince doubt regarding
aspects of the prosecution’s case by sending notes during deliberations,
delivering a split verdict that convicts the defendant on some counts while
acquitting or failing to achieve unanimity on others, or by deliberating for a
period long enough to suggest that the jury did notview the case as a slam dunk
for the prosecution.
[10]
Justin Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR
REVIEW.from P 1791 to 1826
[11] See infra p. 1814.
Justin Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR
REVIEW.fraom P 1791 to 1826
[12] See infra p. 1814. Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[14] See, e.g., United
States v. Mechanik, 475 U.S. 66, 72 (1986). But see, e.g., Stacy & Dayton, supra
note
13, at 85.. Justin Murray, ARTICLE A CONTEXTUAL APPROACH
TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[15] See, e.g., William
R. Newlin, Recent Decision, Fahy v. Connecticut, 375
U.S.
85
(1963), 25 U. PITT.
L. REV. 601, 603–04 (1964). But cf. sources cited supra
note
13. Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[16] See, e.g., Landes
& Posner, supra note 10, at 186. But
there is broad agreement that these remedies, however desirable they might be
in the abstract, are currently all but nonexistent and thus that “for criminal
defendants whose rights are violated at trial, it is ‘reversal or nothing.’” Meltzer,
supra
note
7, at 31 (modifying
Justice Harlan’s statement in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), that “[f]or [innocent] people in Bivens’ shoes, it is damages
or nothing,” id. at 410 (Harlan, J., concurring in the judgment)). And although I agree
that criminal defendants also need more expansive access to remedies other than
reversal, proposals of that kind and efforts like mine to improve the rules
that determine when criminal procedure remedies (in particular, reversal) are
warranted are not mutually exclusive. See Nancy
Leong & Aaron Belzer, Enforcing Rights, 62 UCLA L.
REV. 306, 346 (2015) (discussing the advantages of “multiple remedial avenues” for
procedural error). . Justin
Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to
1826
[17] E.g., Scott v.
United States, 559 A.2d 745, 746–47 (D.C. 1989) (en banc) (adopting Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847 (1988)); see infra section II.C, pp. 1820–23. . Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[18] To be
sure, commentators have helpfully analyzed the Liljeberg
harmless
error method as it relates to recusal law. See, e.g., Leslie
W. Abramson, Appearance of Impropriety: Deciding When a
Judge’s Impartiality “Might Reasonably Be Questioned,” 14 GEO. J. LEGAL
ETHICS 55, 73–75 (2000). My point is simply that the potential significance of Liljeberg
and
its progeny to the broader debate about harmless error review has thus far gone
unexamined. . Justin Murray, ARTICLE A CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW.fraom
P 1791 to 1826
[19] . Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
. Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[21] . Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[22] . Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[23] . Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[24] I discuss the most important of
these exceptions — the harmless error rule applicable to certain types of
recusal errors set forth in Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 862–65 (1988) — in section II.C, infra pp. 1820–23. . Justin Murray, ARTICLE A CONTEXTUAL
APPROACH TO HARMLESS ERROR REVIEW.fraom P 1791 to 1826
[26] Id.
at 24. Chapman
left open the possibility that there might be “some
constitutional rights so basic to a fair trial that their infraction can never
be treated as harmless error,” id. at
23, citing as examples the rule against
admission of “coerced confession[s],” the “right to counsel,” and the requirement
of an “impartial judge,” id. at
23 n.8.
To mention just a few of the many excellent works analyzing Chapman
and its progeny, see, for example, ROGER J. TRAYNOR, THE RIDDLE OF
HARMLESS ERROR (1970); John M. Greabe, The
Riddle of Harmless Error Revisited, 54
HOUS. L. REV. 59 (2016);
Philip J. Mause, Harmless Constitutional Error: The Implications of
Chapman v. California, 53 MINN. L.
REV. 519 (1969);
Meltzer, supra note 7;
and Stephen A.
Saltzburg,
The Harm of Harmless Error, 59
VA. L. REV. 988 (1973).
Justin Murray, ARTICLE A
CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW.from P 1791 to 1826
Justin Murray, ARTICLE A
CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW.from P 1791 to 1826
Justin Murray, ARTICLE A
CONTEXTUAL APPROACH TO HARMLESS ERROR REVIEW.from P 1791 to 1826
[30] Id.
at 637–38.
The Court has since reaffirmed Brecht in
Fry v. Pliler, 551 U.S.
112 (2007).
In that case, the Court rejected the defendant’s claim that Congress implicitly
superseded Brecht by enacting 28
U.S.C. § 2254(d)(1)
(2012), which requires federal courts to
restrict their collateral review of state court proceedings to rulings that are
“contrary to, or involve[ ] . . . unreasonable application[s] of, clearly
established Federal law.” Fry, 551
U.S. at 119 (quoting §
2254(d)(1));
id.
at
119–20.
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