Monday, September 9, 2013

On Harmless Error (9/9/13)

In federal criminal cases, including tax crimes cases, where error occurred at the trial level an appellate court will nevertheless affirm on the rubric that the error was harmless.  To get a sense of how often I have discussed harmless error in this blog, just search on "harmless error" -- the search is here.

Trials, particularly lengthy or complex trials, are error-laden.  The overwhelming number of the errors are in any practical sense harmless in the sense that they do not affect the outcome of the trials.  I tell students  that I have never seen a perfect trial -- or error free trial.  Mistakes are made by all -- the judge and counsel.  What we can realistically expect is that, at least in most cases (in criminal contexts, hopefully, the overwhelming majority of the cases), is fair trials and results the public can have confidence in.  I suppose that the harmless error drill is how appellate courts differentiate fair from unfair trials and results and avoiding the endless retrials (at least until there is an acquittal in a criminal case) if any error required reversal and retrial.  But, as readers surely suspect, the "harmless" conclusion is in the eye of the beholder.

Jonathan Turley has a good blog this morning on the harmless error issue.  Ninth Circuit Reverses Federal Judge Who Ruled That False Statement Of Prosecutor In Closing Argument Was Harmless (Jonathan Turley Blog 9/9/13), here.  I commend it to readers of this blog.  While in the case Professor Turley discusses, it does seem to me that the error was not harmless.  Still, others did see it differently which is why it reached the court of appeals in the first place.

No comments:

Post a Comment

Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.