For a very long time harmless error did not exist. If an appellate court found error, the defendant got a new trial. Since the concept was introduced, it has, like an invasive species, grown exponentially. Among the problems is how we read appellate decisions. Fool me once shame on you, fool me twice shame on me does not apply to harmless error cases. The same error can often continue to be made by judges and prosecutors. So we need to think.

John Greabe (University of New Hampshire School of Law) has posted Criminal Procedure Rights and Harmless Error: A Response to Professor Epps (Columbia Law Review Online, Forthcoming) on SSRN. Here is the abstract:

In Harmless Errors and Substantial Rights, just out in the Harvard Law Review, Professor Daniel Epps proposes a re-conceptualization of constitutional criminal procedure rights that would pave the way for a reform of harmless-error review. Epps contends that those constitutional criminal procedure rights that are capable of being violated by prosecutors and judges in non-harmful ways be redefined so as to include a requirement that their violation causes the right-holder harm. Thus, for example, an accused’s Sixth Amendment right “to be confronted with the witnesses against him” really should be understood as a right to be confronted by those witnesses whose testimony cannot be dismissed as immaterial to the jury’s later decision to convict.

Under Epps’ proposal, harmless error would no longer be an amalgam of remedial doctrines informing whether reviewing courts should reverse or vacate judgments of conviction as a consequence of constitutional rights-violations at or in connection with a criminal trial. Rather, the harm (if any) caused by the putative invasion of a right would constitute a metric informing whether there has been a violation of the right. Harmless-error doctrine is indeed in dire need of reform. And yet, acceptance of the argument that harmless-error review be viewed as part and parcel of some criminal procedure rights would cause more problems than it would solve.

Specifically, the narrower constitutional precedent that would result from operationalizing the proposal would cause mischief when translated into other adjudicatory and lawmaking contexts where the Constitution is implemented. This Response thus defends the conventional understanding of harmless-error review as a remedial inquiry. Part I summarizes Epps’ argument. Part II lays out concerns about certain transcontextual effects if it were to be accepted. Part III sketches some alternative pathways to reform of harmless-error review without narrowing the scope of constitutional criminal procedure rights.