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March 21, 2012

How important (and distinct) is harmless error analysis for sentencing?

The question in the title of this post is prompted by the fact that the Supreme Court hear oral argument today in Vasquez v. United States (SCOTUSblog case page here), which concerns the meaning and application of the federal harmless error rules.  The SCOTUSblog folks have an effective oral argument preview in this post, which includes this background and insights:

Vasquez v. United States [concerns] the meaning of the harmless error rule in Federal Rule of Criminal Procedure 52(a) and 28 U.S.C. § 2111. These similarly worded provisions govern appellate review of any trial error to which counsel objected below; they provide that if an error does not affect “substantial rights,” then it was harmless, and an appellate court should not reverse to correct it.  The proper scope of the harmless error rule has divided the courts of appeals.  Many hold that unless the government proves that the error could not have had any material effect on the proceedings below, it cannot be harmless. Others hold errors harmless when the evidence of the defendant’s guilt is overwhelming. Because the harmless error rule governs so many cases, its meaning is one of the most important questions in criminal appellate law....

It will be interesting to see whether the Court regards the harmless error rule as primarily concerned with process, or instead with results.  Vasquez argues that the Seventh Circuit erred because it failed to consider how close the case was, and failed as well to analyze the effect of the error on the overall verdict.  But if the Seventh Circuit had gone through the motions of such an analysis and reached the same conclusion, it is not clear what else Vasquez would say the court was required to do.  The rules set forth by the United States, on the other hand, are more concerned with the outcome of the analysis.

Another interesting question is whether the Court will treat the error in this case as serious or not. Vasquez argues that the error was global -- i.e., that because the tapes suggested that even his attorney didn’t believe in his defense, they tainted the jury’s consideration of the case as a whole.  Respondent argues that the error was minor -- the tapes would have been admitted anyway, and the court’s only error was failure to provide a limiting instruction. Both characterizations have some force to them.

As the Vasquez case itself spotlights, the harmless error rule arises most often (and its stakes are heightened) after a defendant has been convicted at a trial in which an error occurred.  And yet, because the vast majority of convictions and sentencings follow a plea, whether and how harmless error doctrines apply in other contexts will impact how consequential any ruling in Vasquez will become.

In the wake of Booker, I thought that some circuit courts might start making aggressive use of harmless error analysis to reject defense claims of guideline calculation errors.  But, perhaps for good reason given the considerable significance and weight that the guidelines still have in most courts after Booker, there has not developed a robust harmless error sentencing jurisprudence.  But perhaps readers have some distinct sentencing experiences with harmless error rules in other settings.  If so, do tell.

March 21, 2012 at 08:35 AM | Permalink


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personally i think the whole ideal of "harmless error" is ass backward. The burden should ALWAYS be on the state. In cases like this when an error is discovered it should be on the state to PROVE BRD they did NOT hard the individual. Fail to do that CASE IS GONE!

That is about the only thing that might slow them down!

Posted by: rodsmith | Mar 21, 2012 11:06:31 AM

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