You don’t need to be a very experienced trial lawyer, nor a particularly wise judge to understand that there is rarely a perfect trial. Mistakes or errors occur, so the harmless error doctrine should come as no surprise to anyone.  Harmless error is based upon a finding that the error was not significantly prejudicial to the appellant so as to affect the outcome of the case.

Many appellate court opinions set forth a two-step analysis: first, determining if there was indeed error; and second, determining if such error was harmless. The whole process is however not quite as simple as it may seem. Too often lawyers and judges only remember the harmless holding and forget error occurred and at least in future cases it should not occur again.  In Vasquez v. United States (SCOTUSblog case page here), The United States Supreme Court will decide  the meaning and application of the federal harmless error rules.  The SCOTUSblog has a quick  read  oral argument preview in this post:

Vasquez v. United States [concerns] the meaning of the harmless error rule in Federal Rule of Criminal Procedure 52(a) and 28 U.S.C. § 2111. These similarly worded provisions govern appellate review of any trial error to which counsel objected below; they provide that if an error does not affect “substantial rights,” then it was harmless, and an appellate court should not reverse to correct it.  The proper scope of the harmless error rule has divided the courts of appeals.  Many hold that unless the government proves that the error could not have had any material effect on the proceedings below, it cannot be harmless. Others hold errors harmless when the evidence of the defendant’s guilt is overwhelming. Because the harmless error rule governs so many cases, its meaning is one of the most important questions in criminal appellate law….

It will be interesting to see whether the Court regards the harmless error rule as primarily concerned with process, or instead with results.  Vasquez argues that the Seventh Circuit erred because it failed to consider how close the case was, and failed as well to analyze the effect of the error on the overall verdict.  But if the Seventh Circuit had gone through the motions of such an analysis and reached the same conclusion, it is not clear what else Vasquez would say the court was required to do.  The rules set forth by the United States, on the other hand, are more concerned with the outcome of the analysis.

Another interesting question is whether the Court will treat the error in this case as serious or not. Vasquez argues that the error was global — i.e., that because the tapes suggested that even his attorney didn’t believe in his defense, they tainted the jury’s consideration of the case as a whole.  Respondent argues that the error was minor — the tapes would have been admitted anyway, and the court’s only error was failure to provide a limiting instruction. Both characterizations have some force to them.

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