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May 11, 2017

"A Contextual Approach to Harmless Error Review"

The title of this post is the title of this new paper authored by Justin Murray and now available via SSRN. Here is the abstract:

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.

The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future.

I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.

May 11, 2017 at 03:03 PM | Permalink


Only a false conviction is a really reversible error. All others are harmless, except in the lawyer procedural constructed reality. That really means lawyer lies and made up reality.

Outside of false conviction, all other errors are French lawyer procedural tools to evade substance, taught to the English lawyer in the 12th Century. Those served a purpose. The sole penalty was the death penalty, and loopholes were needed to maintain some proportionality. Today, other errors than the false conviction are no longer necessary. The people who pay for reversible error are the public and future crime victims, certainly not those committing them, the lawyers.

All reversible error should be lawyer or judge malpractice per se, since they have been adjudicated by an appellate court. This should be true for plain error. Lawyers or judges making them should make the victims of their carelessness whole from personal assets, with exemplary damages for plain error. If they do not wish to risk their assets, let them buy liability insurance, as they force everyone else to do. To deter.

Posted by: David Behar | May 11, 2017 11:55:46 PM

There is an interesting discussion of harmless error in the second volume of William Douglas's autobiography in which he credits Jerome Frank of the second circuit for his opposition to the growing use of harmless error.

Posted by: scott tilsen | May 12, 2017 9:26:24 AM

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