Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error in Criminal Trials

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I. INTRODUCTION

Several years before Todd Brecht improbably found himself before the Supreme Court, he was the protagonist in a human tragedy. Just out of a Georgia prison, Brecht was staying with his sister, Molly Hartman, in the home she shared with her husband, the local district attorney, in a small town in western Wisconsin. Roger Hartman didn't approve of his brotherin-law's drinking, sexual orientation, and criminal record. In retrospect, it was a recipe for disaster.

When Todd Brecht was tried for the murder of his sister's husband, he took the stand and argued that his shooting of a rifle into Roger Hartman's back was an accident. In arguing that this version of events was incredible, the prosecutor told the jury several times that Brecht had never told anyone this explanation before his testimony at trial. But to the extent that this referred to Brecht's post-arrest silence, after receiving Miranda warnings, the prosecutor's comments to the jury violated due process. Brecht was convicted; on appeal, he claimed that this constitutional violation justified a new trial.

When the Supreme Court ruled on his claim in 1993, eight years after the shooting, it was the fifth court to answer the question whether the constitutional violation had sufficiently impacted the trial to require reversal of the murder conviction, or whether the error was "harmless." Each court had reversed the one before it.1 The Supreme Court upheld Brecht's conviction, in an opinion agreeing with the analysis of Seventh Circuit Judge Frank Easterbrook below.2 But the questions surrounding "the riddle of harmless error"3 continued, beyond the case of Todd Brecht and a prosecutor whose constitutional missteps were forgiven at a trial in which he was no doubt singularly focused on punishing his boss's killer.

The harmless-error rule has been called "probably the most cited rule in modern criminal appeals."4 The Chief Judge of the second Circuit has referred to harmless error as "one of the most important doctrines in appellate decisionmaking," and posited that harmless-error principles may determine the outcome of more criminal appeals than any other doctrine.5 A leading treatise on federal appellate practice calls harmless error "probably the most far-reaching doctrinal change in American procedural jurisprudence since its inception."6

In 1970, in what remains the seminal work on harmless error, Roger Traynor-then Chief Justice of the California Supreme Court-pointed to the "obvious need of guidelines to control appellate discretion in the evaluation of error."7 But in the wake of the decision in Todd Brecht's case, Brecht v. Abrahamson, harmless-error doctrine remains a bit of a mess. Thirty-five years after Justice Traynor identified the problem, the significance of the doctrine has grown, while the need for further guidelines remains strong.

It is difficult to overstate the stakes. The criminal justice system has been shaken by increasing evidence of wrongful convictions, and most of the constitutional errors being assessed in harmless-error analysis are central to the truth-determining process of criminal trials. Getting harmlesserror determinations right, then, is central to accurate determinations of guilt-an area about which there is evident cause for concern.

The conventional wisdom on harmless-error doctrine is that there are two different and irreconcilable approaches that judges use in determining harmless error which are reflected in two coexisting lines of Supreme Court cases. Much of the scholarship on harmless error, as well as the ongoing debate within the Supreme Court, focuses on the difference in these two approaches. But this debate overstates the difference between the two approaches and obscures the shared normative ideal at the heart of harmless-error doctrine. Contrary to conventional assumptions underlying debates on harmless error, I argue that by using tort law, these two approaches can be reconciled in a way that increases the overall accuracy of harmless-error analysis. …