The Right Approach to Harmless Error

Abstract

My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights. Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able efforts in his response piece “Criminal Procedure Rights and Harmless Error: A Response to Professor Epps,” I remain persuaded of the correctness of the rights-based approach to harmless error laid out in my article. In this short Reply, I explain why. First, I respond to Professor Greabe’s most significant criticisms of my rights-based approach, and show why I think they miss the mark. Second, I explain why Professor Greabe’s own remedy-based theory is itself problematic and unable to solve the enduring riddles of harmless error.