Harmless Errors and Substantial Rights

By Epps, Daniel | Harvard Law Review, June 2018 | Go to article overview

Harmless Errors and Substantial Rights


Epps, Daniel, Harvard Law Review


CONTENTS  INTRODUCTION I.   THE RISE OF HARMLESS CONSTITUTIONAL ERROR      A. Origins         1. Harmless Error Generally         2. The Possibility of Harmless Constitutional Error      B. Growth and Development II.  THE ENDURING RIDDLES OF HARMLESS ERROR      A. What Source of Law?         1. Part and Parcel of Constitutional Rights         2. Statutory Text         3. Due Process         4. Constitutional Common Law and the Law of Remedies      B. Can Constitutional Errors Be Harmless, and If So Which Ones?         1. The Legitimacy of Harmless Constitutional Error         2. The Chapman Step Zero Question      C. How Should Courts Conduct Harmless Error Analysis? III. RIGHTS, NOT REMEDIES      A. The Theory      B. Benefits of the Rights-Based Approach         1. Answering the Source-of-Law Question         2. Making Sense of the Statutory Text         3. Helping to Answer the Step Zero Question         4. Guiding (and Constraining) Harmless Error Analysis      C. Objection and Response      D. Applications         1. The Right to an Impartial Judge         2. Coerced Confessions         3. Jury Instructional Errors         4. Illegally Obtained Evidence         5. Batson and the Right to a Public Trial IV.  IMPLICATIONS       A. Congress's Power to Regulate Harmless Constitutional Error       B. Postconviction Review CONCLUSION 

INTRODUCTION

Harmless error is almost certainly the most frequently invoked doctrine in all criminal appeals. (1) When a defendant asks an appellate court to overturn a conviction, the government will often argue that, even if a violation of the defendant's rights transpired below, the remedy of reversal is not required because the purported error did not actually undermine the verdict. Courts often agree, either explicitly finding that a constitutional or statutory violation occurred below while still denying relief because the error was harmless, (2) or simply affirming on harmlessness grounds without deciding conclusively whether an error occurred at all. (3)

Yet for all its practical importance, and for all courts' familiarity with it, harmless error, and particularly harmless constitutional error, remains surprisingly mysterious. The case law reflects deep uncertainty and disagreement about fundamental questions, such as which constitutional errors should even be subject to harmless error analysis (4) and how to conduct that analysis when it applies. (5) As a rich scholarly literature has grown, (6) the confusion has only deepened. Some scholars challenge the very idea that a constitutional error can ever be harmless. (7) Others accept the premise of harmless error review but contend that courts apply it too generously. (8) And while a number of commentators have tried to clear up the doctrine, (9) the replacements offered provide no clearer path forward and would likely make the law of harmless error even less determinate than it is now. (10)

Perhaps most troubling, it remains unclear at a basic level what constitutional harmless error review really is--what source of law justifies its use and enables the Supreme Court to insist that state courts apply it to federal constitutional claims. (11) The most compelling explanation to date was offered by the late Daniel Meltzer, who (building on his work with Richard Fallon on constitutional remedies) argued that the doctrine was best understood as a form of "constitutional common law," (12) a nebulous and controversial category of judge-made rules that are subject to statutory override. (13) And while that approach seems to make the most sense of the Court's cases, it leaves unsolved a number of mysteries while also providing little guidance about when and how to conduct harmless error analysis, (14) relegating most hard questions to an indeterminate remedial balancing. (15)

This Article proposes a different way of thinking about harmless constitutional error, one with the potential to clear up most of its enduring puzzles. …

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