Harmless Error as Constitutional Common Law: Congress's Power to Reverse Arizona v Fulminante

Abstract

When the Supreme Court announced in Arizona v Fulminantel that the introduction of a coerced confession into evidence in criminal trials may be treated as error, critics attacked the decision as a crabbed reading of the Constitution's grand protections of the rights of the criminally accused. The Los Angeles Times reported that the Court knocked down one of the pillars of constitutional law,2 and complained that the decision seriously eroded one of the Constitution's fundamental protections.3 Steven Shapiro, Associate Director of the American Civil Liberties Union, said that the case reflected the Rehnquist Court's increased willingness balance fundamental constitutional rights against the desire to preserve and uphold criminal convictions.4 Even Justice Stevens added to the chorus: an extraordinarily aggressive Supreme Court has reached out to announce a host of new rules narrowing the federal Constitution's protection of individual liberties. The prosecutor's use of a coerced confession-no matter how vicious the police conduct may have been-may now constitute harmless error.' These criticisms reflect the now-predominant understanding of the harmless error rule as being a doctrine of constitutional law. They each assume that the Supreme Court decisions that expand the scope of harmless error analysis by the same token contract the sweep of constitutional rights.