Harmless Error Research Articles

Comment on Lempert on Posner

R ICHARD Lempert is a distinguished evidence scholar, one on whose work I relied in my article in the Stanford Law Review,' which forms the text for his conference paper.2 His paper, critical but courteous, does me the honor of taking my article seriously and makes a number of nice points-for example, on the cost profile of discovery,3 on the Weitzman search model,4 on harmless error,' and on the hearsay exception for records.6 He also improves on my economic analysis of the bus case.7 I shall turn presently to the areas of our disagreement, which are many. But let me begin by remarking the defensive note that his paper sounds, the note of legal specialists defending their domain against invasion by economists or, worse, by lawyers who think like economists or, most irritatingly, by lawyers whose professional experience makes it difficult to dismiss what they have to say in the vein of economics as the ravings of a completely ignorant outsider to whichever field of law they want to put under the economic mi-

Coerced confessions and the jury: An experimental test of the "harmless error" rule.

Prompted by the U.S. Supreme Court's landmark decision in Arizona v. Fulminante (1991), two studies evaluated the proposition that an erroneously admitted coerced confession can be considered “harmless error.” Mock jurors read transcripts of a murder trial containing a confession that was (1) elicited in a high- or low-pressure interrogation, and (2) ruled admissible or inadmissible by the judge (no-confession control groups were also included). As prescribed by law, jurors saw the high-pressure confession as less voluntary, correctly recalled the judge's ruling, and reported that it had less influence on their decisions. On verdicts, however, the confession increased the conviction rate—even when it was seen as coerced, even when it was stricken from the record, and even when jurors said it had no influence. These results suggest that appellate courts should exercise caution in applying the harmless error rule to the admission of coerced confessions.

A Case for Harmless Error Review of "Ake" Errors

A Case for Harmless Error Review of "Ake" Errors

Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment

In Batson v. Kentucky and its progeny, the Supreme Court has done poorly at explaining how discriminatory peremptory challenges harm what has become the central value in the criminal justice system--the reliability of criminal verdicts as factually accurate pronouncements of guilt or innocence. Batson's defenders on the Court have insisted that race and gender are factually irrelevant to a juror's likely viewpoint, and have thereby foreclosed any chance that jury discrimination might have any impact at all on the reliability of verdicts. Batson's loudest critics have insisted that race and gender are factually relevant to a juror's likely viewpoint. Yet these Justices have nonetheless insisted that discriminatory peremptory challenges have negligible impact on the reliability of verdicts. This is the paradox of Batson. In this Article, Professor Muller proposes a solution to this paradox. He argues that race- and gender-based peremptory challenges do indeed make criminal verdicts unreliable. Such challenges offend the idea, central to the Sixth Amendment's jury requirement, that a criminal jury must represent distinctive groups in the community. Professor Muller argues for a richer definition of verdict reliability than the current Court has adopted, one that attempts to blend the Sixth Amendment's twin commands of jury impartiality and community representation.

The Rehnquist Court—The Counter-Revolution that wasn't, Part 2: The Counter-Revolution that is

Commentators had predicted that the United States Supreme Court under Chief Justice Rehnquist would, at most, continue the Burger Court's purported "moderation" of the rights-based criminal procedure jurisprudence of the Warren era. In fact, however, the Burger Court's characterization of criminal trials as crucibles yielding truth-in-fact, together with its consequent devaluation of rights and procedures that impede this truth-finding function, has led to a constitutional counterrevolution. Analysis of the Court's evolving treatment of truth-finding, harmless error, habeas corpus, and stare decisis reveals a jurisprudence no longer grounded in the due process orientation of the Warren era or even the truth-finding quest of the Burger Court but rooted instead in the Supreme Court's inherent power to impose swiftness and finality on the criminal conviction process.

Ake v. Oklahoma and Harmless Error: The Case for a Per Se Rule of Reversal

Ake v. Oklahoma and Harmless Error: The Case for a Per Se Rule of Reversal

Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review

Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review

Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review

Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review

Needed Changes in Texas Venue Law

This paper describes and proposes solutions to three tensions between the Civil Practice and Remedies Code and the Rules of Civil Procedure. Part II sets out the history of the two different bodies of venue law in Texas and explains what happened to them in 1983. Part III recommends that the Code be revised so that a motion to change venue because of prejudice can be filed after the answer. Part IV recommends that the Code should be revised so that live testimony is permissible in a hearing on a motion to change venue because of prejudice. Part V analyzes the treatment of motions to change venue on appeal. It recommends that the Code be revised so that the harmless error rule does not apply when a trial court holds a trial in a prejudiced forum. Part VI summarizes the proposed modifications and explains how they work together to increase efficiency and fairness.

Harmless Error and Constitutional Remedies

Harmless Error and Constitutional Remedies

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

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.

The Potential for Bias in Videotaped Confessions1

Within the criminal justice system, there is a growing trend toward utilizing videotape technology to record and to present confession evidence. Previous research, however, indicates that the point of view from which a confession is videotaped can influence determinations of its voluntariness. The present study extended this earlier result by demonstrating that (a) confessor‐focus, but not equal‐focus (on the confessor and interrogator), videotapes produce judgments of greater voluntariness compared to the more traditional audiotape and transcript formats; (b) this pattern generalizes across confessions concerned with three different crimes (i. e., rape, drug trafficking, and burglary); (c) individuals high and low in need for cognition are equally susceptible to the videotaped‐confession bias; and (d) biased voluntariness judgments may, in turn, prejudice likelihood‐of‐guilt assessments. In light of both a recent Supreme Court ruling stating that the improper use of involuntary confessions may in certain instances be considered “harmless error,” and the fact that actual criminal interrogations are usually videotaped with the focus on the confessor, these findings have important legal implications.

Disentangling Webb: Governmental Intimidation of Defense Witnesses and Harmless Error Analysis

In the days leading up to a criminal trial, the prosecutor contacts a potential defense witness and threatens to charge her with a crime if she testifies on the defendant's behalf. The witness declines to testify, and the defendant is convicted. Such governmental intimidation of a potential defense witness violates the criminal defendant's rights to compulsory process and due process of law.1 However, this violation might not trigger a reversal of conviction. In some cases, the silenced testimony of the intimidated witness may have been wholly cumulative, and the evidence of the defendant's guilt may be overwhelming. Should an appellate court then declare that the intimidation of the potential witness was harmless error, and uphold the conviction? Under current law, the question appears open. Some constitutional violations of a defendant's rights require the automatic reversal of any subsequent conviction, whether or not the violation contributed causally to the verdict.2 Per se reversal, however, is the exception and not the rule.3 A court will generally not reverse a conviction if it deems the error harmless-if the error did not actually prejudice the defendant by affecting the outcome of the trial. The Supreme Court has applied the harmless error doctrine in recent years to an increasing variety of trial errors, including most constitutional violations.4 However, the boundaries of the doctrine remain ambiguous. In particular, it is unclear whether harmless error analysis applies to the government's intimidation of a potential defense witness.

Fifth Amendment. Harmless Error Analysis Applied to Coerced Confessions

Fifth Amendment. Harmless Error Analysis Applied to Coerced Confessions

A Reversal of Hypnotically “Refreshed” Testimony:A Brief Communication

A case is briefly presented in which questioning under hypnosis led to a positive identification of an accused rapist when the victim had previously been uncertain. During the trial, the victim was first certain, then reverted to her prehypnotic uncertainty. An appeal from the conviction of the defendant was denied on the grounds that the witness' uncertainty meant that the hypnotic intervention was harmless error. It is possible that this decision may not be entirely justified.

Harmless Error and the Valid Rule Requirement

Harmless Error and the Valid Rule Requirement

Mechanikal Applications of the Harmless Error Rule in Cases of Prosecutorial Grand Jury Misconduct

Mechanikal Applications of the Harmless Error Rule in Cases of Prosecutorial Grand Jury Misconduct

Harmless Error, Prosecutorial Misconduct, and Due Process: There's More to Due Process than the Bottom Line

Harmless Error, Prosecutorial Misconduct, and Due Process: There's More to Due Process than the Bottom Line

Rethinking Harmless Constitutional Error

This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court's existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court's approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used at trial to decide when constitutional error has occurred. Finally, Part IV develops a formulation of the Chapman rule that ensures that appellate courts will not rely upon their own evaluations of the weight and credibility of the evidence in deciding whether a constitutional error has affected the outcome.

Supervisory Power Meets the Harmless Error Rule in Federal Grand Jury Proceedings

Supervisory Power Meets the Harmless Error Rule in Federal Grand Jury Proceedings