About 2,800 years ago, Homer described Odysseus’ encounter in Hades with an individual who was a betrayer of divine secrets, cannibal, and kin-slayer, all in one:

I saw also the dreadful fate of Tantalus, who stood in a lake that reached his chin; he was dying to quench his thirst, but could never reach the water, for whenever the poor creature stooped to drink, it dried up and vanished, so that there was nothing but dry ground- parched by the spite of heaven. There were tall trees, moreover, that shed their fruit over his head- pears, pomegranates, apples, sweet figs and juicy olives, but whenever the poor creature stretched out his hand to take some, the wind tossed the branches back again to the clouds.

A few decades ago, in United States v. Pallais, Richard Posner analogized the modern criminal defendant to that wretch, Tantalus:

The expansive code of constitutional criminal procedure that the Supreme Court has created in the name of the Constitution is like the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code.

Mere days ago, the Harvard Law Review published an article entitled A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (May 1, 2017), by Justin Murray, of the Illinois Attorney General’s Office. Mr. Murray posits that the harmless-error construct, conditioning relief on whether a given error has affected the result of the proceeding under review, is a mistaken approach. He asserts that such an approach fails to vindicate societal needs that are just as important as the truth-finding role that is served by upholding factually “overwhelming” convictions.

One might say that Mr. Murray essentially has just articulated a different way that an error could fail to be harmless. For example, perhaps an error cannot truly be said to be “harmless,” even if the outcome of the trial would be the same either way, if the error impairs other, equally important, “non-truthfinding interests.”  Id. at 1795. These interests could include things like the public’s right to have its instruments of justice be transparent, to have those instruments be unbiased, to have judicial institutions not engage in invidious discrimination, or to allow accused persons to exercise the right to make autonomous decisions in the justice process.

Indeed, as Mr. Murray points out, some interests are so revered in the American psyche that we have long protected them regardless of whether doing so would cause the guilty to “walk.” For example, the Fifth Amendment’s protections against self-incrimination do not necessarily further the interest of truth-finding. An accused not warned of her Miranda or Article 31 rights might yet have made truthful statements. Similarly, the Fourth Amendment’s exclusionary rule for evidence obtained by unreasonable searches and seizures runs the potential of hindering truth-finding at trial. Id. at 1812.

However, as this blog has discussed, here and here and here, even the protection of those – most American of interests – can be subjected to a balancing test. For example, a court faced with evidence obtained by an illegal search or seizure cannot, at least in the federal jurisdiction, automatically exclude that evidence from trial. The judge must first balance the public’s interest in having courts perform their truth-finding function with the public’s equally important interest in curtailing police abuse. The truth-finding interests must be balanced against the non-truth-finding ones. In that way, perhaps Mr. Murray’s proposal is already being employed, at least as regards the Fourth Amendment’s exclusionary rule.

As an aside, Mr. Murray’s article, starting on page 1800, contains a nice summary of the different standards of review applicable to cases on appeal. He points out that those standards are really just different articulations of the harmless error standard – they are distinguished primarily by which party bears the burden to prove that the error was, or was not, harmless.


5 Responses to “Scholarship Saturday: Relieving the wretched – a new approach to harmless error review”

  1. stewie says:

    All this does is ask to create another line, unless ANY error should result in relief?

  2. Isaac Kennen says:

    From Mr. Murray’s article, at 1796:

    My proposal would alleviate this problem by leaving reversal on the table regardless of how strong the prosecution’s untainted evidence might be. This is not to say that the strength of the prosecution’s case would be irrelevant. Insofar as the errors under review implicate only truth-furthering interests — or non-truth-furthering interests that are result-correlated in the sense described below — contextual harmless error analysis would yield outcomes similar or even identical to those produced by the current result-based rules.

  3. Zachary D Spilman says:

    Mr. Murray’s approach has added value in a system – like the military justice system – where the prosecutors, staff judge advocates, and convening authorities who commit the most serious and stubborn errors (including prosecutorial misconduct, affirmative misstatements of the law, and even just plain incompetence) are often long gone, in new assignments with personal awards in their service records, when the error is revealed, because Mr. Murray’s approach ensures that there is a disincentive to commit such errors.

  4. stewie says:

    So then, we are just moving the line. Harmless error review is really no different than the good-faith exception for police.

  5. JustAnotherADC says:

    No judge in a real court is going to adopt this stuff, but it sure is nice naval-gazing for academics.

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