The Challenge of Harmless Error

Louisiana Law Review Volume 59 | Number 4 Symposium on Harmless Error - Part I Summer 1999 The Challenge of Harmless Error Stuart P. Green Repository Citation Stuart P. Green, The Challenge of Harmless Error, 59 La. L. Rev. (1999) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol59/iss4/3 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact . The Challenge of Harmless Error Stuart P. Green* One of the ways we can understand the debate over the proper uses of the harmless error doctrine is in terms of the traditional distinction in moral non-consequentialism. and consequentialism between philosophy Consequentialism (or teleology, as it was once known) holds that the rightness or wrongness of actions should be determined by a comparative assessment of their consequences. Non-consequentialism (or deontology, as it is also known) asserts that there are certain kinds of acts that are wrong in themselves, and thus provide a morally unacceptable means to the pursuit of any ends, including ends that may otherwise be morally attractive.' A consequentialist looking at the question of harmless error would say that appellate courts should decide whether to reverse a conviction by considering the effect of the claimed procedural error. If the error can be shown to have affected the outcome of the trial, then reversal would be appropriate. But if the verdict would have been the same regardless of whether the error had ever been committed, there is no reason to reverse, since the error was, in effect, morally irrelevant. Indeed, the consequentialist would say that reversing an error that, by hypothesis, had no effect on the outcome of the trial would lead to affirmatively bad consequences-including a wasteful and redundant second trial that would likely end the same way as the first. A non-consequentialist would view the issue quite differently. The nonconsequentialist would say that when a trial error results in the violation of a defendant's procedural rights, then those rights should be (in Ronald Dworkin's famous phrase) taken seriously, regardless of whether the violation actually affected the trial's outcome. Indeed, as Dworkin has argued, for a right against the government to be meaningful, considerations of general social utility alone 2 must be inadequate to authorize the state to override it. And, the nonconsequentialist would say, one of the clearest and most straightforward ways of taking such rights seriously would be to reverse the conviction and require the defendant to be tried again, this time with his rights restored. So how is one to decide between these two approaches? The traditional argument against consequentialism is that it allows (indeed, requires) agents to do horrific acts (such as rape and torture) so long as they will produce the best Copyright 1999, by LOUISIANA LAW REVIEW. Associate Professor of Law, Louisiana State University. B.A., 1983, Tufts University; J.D., 1988, Yale Law School. 1. For a helpful introduction to these concepts, see Samuel Schcffler, Consequentialism and its Critics (1988); Nancy (Ann) Davis, Contemporary Deontology, in A Companion to Ethics 205 (Peter Singer, ed. 1991); Philip Pettit, Consequentialism, in A Companion to Ethics 230 (Peter Singer, ed. 1991). The most common form of consequentialism is utilitarianism, which holds that we should judge actions according to their ability to promote utility, happiness, or pleasure. 2. Ronald Dworkin, Taking Rights Seriously, in Taking Rights Seriously 191 (1977). 1102 2LOUISIANA LAW REVIEW [Vol. 59 overall consequences. 3 Yet such reductio ad absurdum arguments seem not to apply in the context of harmless procedural error, where the evidence against the defendant is considered so strong that, absent the procedural error, the defendant would nevertheless have been convicted. On the other hand, the idea that serious violations of a defendant's rights-procedural "errors" as we euphemistically call them-should go unremedied simply because the appellate court believes (with the benefit of counterfactual hindsight) that they had no impact on the outcome of the trial is a troubling one. The fact that the defendant's rights were violated, one might think, should be harm enough to justify reversal. By itself, the choice between consequentialism and non-consequentialism, though perhaps instructive, seems unlikely to resolve the practical complexities of the harmless error doctrine. In what follows, I would like to mention three additional considerations that ought to play a role in the development of any comprehensive theory of harmless error. My first point is that we need to consider the role of appellate courts in a common law system. The most obvious function of appellate courts is to identify errors and, where appropriate, to make corrections. In this manner, appellate courts are concerned with the impact of their decisions on the litigants in the particular case sub judice. But common law adjudication also reflects a second vital function. In the common law system, appellate courts formulate law that will apply in future cases. As one scholar has put it, they "enrich the supply of legal rules." 4 When an appellate court holds that a lower court has erred, it has a significant opportunity (even an obligation) to identify, articulate, and analyze the nature of that error. Through the publication of appellate decisions, trial courts are put on notice that such conduct constitutes error and other appellate courts have precedent to guide them in future decisions. The fact that a trial court's error was harmless on the facts of a particular case need not affect the precedential value of the court's determination that there was in fact error. Applying the law developed in such a decision to a subsequent case in which a similar error has occurred, a court could well determine that the subsequent error was not harmless. It might even be argued that the harmless error doctrine has the potential to promote judicial candor and integrity. In a society that perceives itself as besieged by crime, appellate courts are under terrific pressure to uphold criminal convictions. Many judges apparently fear that reversing a conviction on the basis 3. See. e.g., Thomas Nagel, War and Massacre, in Mortal Questions 53-74 (1979). An analogous argument that one often sees in the context of substantive criminal law is that strict adherence to consequentialism would lead to the perverse conclusion that, so long as sufficient deterrence would be achieved, we should impose severe punishments for minor offenses and require that those who are known to be innocent be convicted. 4. Melvin A. Eisenberg, The Nature of the Common Law 4 (1989). 1999] STUART P. GREEN 1103 of a "technicalit (...truncated)