Considerations Concerning Harmless Error in Louisiana Criminal Cases

• Author: Alfred Paul LeBlanc, Jr.
• Position: Currently an associate with the firm of Phelps, Dunbar, LLP in Baton Rouge
• Pages: 21-42

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Currently an associate with the firm of Phelps, Dunbar, LLP in Baton Rouge, served as an assistant attorney general with the Criminal Division of the Louisiana Attorney General's office from 1999-2003. Prior to that time, he worked as a litigation associate with the firms of Fulbright & Jaworski, LLP, and King & Spaulding, LLP, in Houston, Texas. Mr. LeBlanc has previously served as a judicial clerk to Chief Justice Pascal Calogero of the Louisiana Supreme Court; the late Henry A. Politz, of the United States Court of Appeals for the Fifth Circuit; and Judge Will Garwood, also of the United States Court of Appeals for the Fifth Circuit.

I Introduction

Some time ago, I was approached by several esteemed members of the faculty of the Paul M. Hebert Law Center who asked me to consider preparing an article for publication in the Louisiana Law Review. When they informed me that the topic of the article was to be harmless error, as considered from the "prosecutor's perspective," my initial reaction was one of reticence to undertake such a daunting task. At the time I was a prosecutor with the Louisiana Attorney General's Office, and thus was familiar with the core issues that such an article would have to examine. I was also generally familiar, from my time as a judicial clerk, with the variegated treatment given this topic nationwide by published opinions and articles. In my personal practice, I had often heard the cynical view of the defense bar regarding judicial application of the doctrine. And I knew first-hand the prosecutor's feeling when briefing harmless error issues, a feeling much akin, I think, to that which must arise during a game of Russian roulette.

Despite my initial reservations, I undertook to attempt a concise discussion of the issue. My goal is to present a statement that is sufficiently academic to be worthy of consideration, yet not so prolix or turgid as to prove elusive or impracticable. I hope I have succeeded, and that something worthwhile, even if only further discussion, will come from this.

Additionally, while this article is indeed written from a "prosecutor's perspective," further elucidation of that perspective is appropriate. During my time as a prosecutor, I, like most prosecutors, was often stirred by the great responsibilities that were the natural concomitant of the power inherent in my position. Indeed, now that I am again in private practice I often miss the purity, Page 22 if not the clarity, of having as my first and only client the people of this state, and perhaps in a larger sense the elusive concept of "justice." I therefore believe that an ethical prosecutor cannot simply assume a counterpoint to the position of the defense, as would an adversary in civil litigation, because to do so would comprise an elevation of the prosecutor's own interests, or those of some other interested party, above the interests of justice. Thus, while I believe whole-heartedly in the dialectic process, this article is not simply an adversarial exercise vis--vis any similar presentation of the defense bar, and I trust it will not be read in that light.

II Narrowing The Question

In federal court, the universe of errors in a criminal case is susceptible to division between those errors that merely violate a statutory rule or maxim, and those errors violative of constitutional protections. This analytical divide, while determinative of the applicable standard of review in federal court, is essentially irrelevant to Louisiana appellate courts. This is because, at least for the time being, the Louisiana Supreme Court appears to have adopted a single harmless error methodology to be applied uniformly to all manners of error, whatever their dimension.¹

The Louisiana Supreme Court has also apparently adopted the distinction, first articulated by Chief Justice Rehnquist in one of the two majority opinions in Arizona v. Fulminante,² between "structural" and "trial" errors.³ A "structural" error is one that so undermines the fundamental principles that govern the course of American criminal prosecutions that the error is considered per se prejudicial, and no harmless error review is possible.⁴ When structural error occurs, there has been no cognizable prosecution, conviction, or sentence in the eyes of the law. As one might infer, the range of "structural" error is narrow⁵ and exclusive; all errors not qualified as "structural" are considered "trial" errors subject to harmless error review.

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This article takes no position regarding the structural/trial error dichotomy. First, all "structural" errors recognized to date are of a federal constitutional dimension,⁶ and are therefore governed by issues of federal law beyond the scope of this article. Second, the criticisms of this dichotomy have been pointed and poignant, and the courts' difficulties in effectively applying it have been the subject of much learned comment.⁷ Finally, echoing a point made by several courts, if "structural" errors are indeed so flagrant and injurious to the integrity of our legal system, then such errors cannot and will not be found harmless by any reasonably constructed mode of harmless error review.

To further narrow the focus, however, it is helpful to separate at the threshold instances of potentially reversible error into five separate categories. These categories are defined by both the stage of the prosecution wherein they may be expected to occur, and the nature of the error (and analysis) they engender. These categories include: 1) errors that occur in the course of pretrial proceedings;⁸ 2) errors that occur in the course of voir dire; 3) errors in the taking of evidence or "evidentiary" error; 4) improper argument or comment by counsel; and 5) erroneous jury instructions.⁹ While there are certainly particular species of error that do not fall neatly within these five categories, e.g., trial by a biased judge, these five categories provide a functional framework within to consider the gamut of reversible error.

Addressing these five categories of error, it is safe to say that our current harmless error rule has been formulated, articulated, and refined with the category of evidentiary error in mind. As will be explained in greater detail in the following section, Louisiana's generic harmless error rule focuses upon the effect of the subject error upon a particular jury's verdict. Obviously, the first two categories (errors occurring during pre-trial procedures and voir dire) involve error occurring prior to the selection and empanelling of a petit jury. As might be expected, therefore, these categories of error Page 24 have attendant and particularized modes of analysis.¹⁰ The category of errors concerning improper argument or comment can, in turn, be seen as derivative of, or at least interrelated with, evidentiary issues; after all, it is the evidence presented that determines the proper scope of argument and comment.¹¹ Similarly, in assessing errors falling within the category of erroneous jury instructions, it is often the evidentiary impact that is determinative, i.e., did the erroneous instruction unduly focus the jury's attention on particular evidence, or did it distract the jury from focusing upon evidence beneficial to the defendant?¹²

Thus, given the normative, if not heuristic, thrust of this article, the focus herein will be upon evidentiary error. Accordingly, all the exemplars presented herein fall within the category of evidentiary error.¹³ Such a focus is warranted because of its commonplace occurrence, the fact that at least two other categories relate to evidentiary error (and may therefore benefit from a systematization of the way in which such error is reviewed), and the synchronicity between such error and our current formulation of the generic harmless error rule.

Finally, this article concerns the standard of harmless error review to be given evidentiary errors claimed by the defendant in an appeal from a verdict of guilty rendered by a petit jury.¹⁴ This is because a claim by a defendant that he was prejudiced because evidence was erroneously admitted or excluded from his trial is, in the author's estimation, the most frequently occurring and most vexing species of error. If this article sheds any light upon the way in which the harmlessness of evidentiary error is to be determined, then its influence upon other categories of error will follow.

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III The Nature Of Harmless Error

Before any consideration of the standards to be applied to harmless error review can take place, the origins and history of the harmless error doctrine, as well as the public policies animating it, must be understood. That being said, this article will not attempt to cover again ground that has been thoroughly plowed by other commentators. Suffice it to say, in the early years of the Twentieth Century both the public and jurists became highly critical of the widespread appellate practice of overturning judgments and convictions upon the discovery of any error, regardless of its significance.¹⁵ Congress responded in 1919 by enacting the first harmless error rule, a statutory guide applicable to cases heard in federal courts.¹⁶ The state legislatures subsequently adopted harmless error rules of their own. As the number of rights enjoyed by criminal defendants expanded over the 1960's and 1970's, the application of the harmless error doctrine expanded as well.

Louisiana has followed the national trend. In Louisiana, harmless error review is mandated by the legislature. The legislative history of this provision was examined by the Louisiana Supreme Court in State v. Johnson:

The Louisiana harmless error rule was first codified in 1928...