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  • Spencer Griffin

A Not So Harmless Error

Updated: Oct 25, 2023

Thomas Jefferson, our beloved president, once wrote, “I consider (trial by jury) as the only anchor, ever yet imagined by man, by which government can be held to the principles of its constitution.” Considered a fundamental right, this “anchor” could be tarnished by the harmless error doctrine.

When enacted, the harmless error doctrine attempted to prevent against the “impregnable citadels of technicality,”which allowed criminal defense attorneys to easily overturn guilty verdicts. As the doctrine has expanded in scope it poses the risk of diverting power vested in a jury to a judge.

The harmless error doctrine is triggered when a trial court makes a mistake. When trial courts act improperly, the blunders are classified into one of three categories. If the error is prejudicial towards the defendant, then the error is considered a “harmless error” and ignored pursuant to Rule 52(a). If there is a possibility that the error is prejudicial and the defendant properly objected, then it is classified as a “reversible error”. Finally, if the error affects a substantive right, then it is a “plain error” under Rule 52(b), and the defendant’s conviction is overturned or afforded some other relief.

This first category, harmless error, has presented many challenges for the Supreme Court. It is particularly complex because its application is expansive, from statutory provisions to the Criminal Rules and Constitutional provisions. In a harmless error analysis, courts first examine if the error involved a constitutional right. If a constitutional right is not implicated, the Supreme Court has often applied the Kotteakos test, which asks if the error had substantial influence on the conviction, and if so, the conviction cannot stand.

When the error involves a constitutional right, the test is more complex. The pages of harmless error were notably expanded in Chapman v. California, where the Supreme Court held that the prosecution must establish beyond a reasonable doubt that the error was harmless. This decision was followed by a slight pivot in Harington v. California, where the Court inquired if there was “overwhelming” support for the guilty verdict. In response to confused application of the rule, the Court wrote in Sullivan v. Louisiana that the Chapman test requires the appellate court to examine what effect the constitutional error had on the guilty verdict. Currently, when a case is on appeal judges can choose whether to apply the Chapman or Harington test. Since Chapman has a higher burden for the prosecution, the defendant’s conviction is much more likely to be overturned under a Chapman analysis. Even if a judge looks solely at Chapman for analysis, she will still be faced with the same question: how did the error affect the verdict?

Harmless error doctrine becomes even more complicated when applied to jury trials on appeal. In a bench trial the appellate judge is able to read the opinion of the trial judge. This allows the reviewing judge to determine how the trial court’s mistake would have affected the trial judge’s holding. However, Federal Rule of Evidence 606(b) bars jurors from witnessing about their deliberation, meaning the appellate judge is forced to speculate as to what jurors were thinking in a jury trial. Any number of factors may have determined how the juror voted, which makes it impossible for a judge to determine if the jury still would have returned a guilty verdict.

Chief Justice Rehnquist noted in Johnson v. United States that such a standard of review required a counterfactual analysis. This standard requires a judge to draw conclusions about what a reasonable jury would have decided, which is essentially dependent upon what the reviewing judge believes. This problem is made worse because violations of the defendant’s rights are assessed against the “fairness” of the judicial proceeding. Since this is a subjective question answered by the appellate judge, the reviewing court can essentially ignore errors by the trial court as long as the judge believes the defendant is guilty of the crime. If the defendant’s rights can be violated so long as the appellate judge believes the defendant to be guilty, the defendant’s rights are rendered useless to the defendant. The modern application of the harmless error doctrine has led some commentators to argue that this approach will only incentive police and prosecutors to violate the defendant’s rights.

While a judge reviewing the evidence instead of a jury may have little bearing on the outcome of the trial, the notion that a defendant’s rights may be effectively disregarded has harmful implications.


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