Fear of a Paper Tiger: Enforcing Louisiana s Procedural and Statutory Rules in the Wake of Harmless Error Analysis
| Author | James E. Boren; Michael A. Fiser |
| Position | Graduate of Louisiana State University; Graduate of Louisiana State University |
| Pages | 5-20 |
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Graduate of Louisiana State University, Paul M. Hebert Law Center, 1975, where he was a member of Louisiana Law Review and Order of the Coif.
Graduate of Louisiana State University, Paul M. Hebert Law Center, 2003, where he served on Moot Court Board and participated as a Tullis Competitor; formerly served as paralegal to co-author, James E. Boren; currently, an attorney practicing in Louisiana and Mississippi.
Unfair and illegal tactics by prosecutors are more and more often labeled "harmless" (i.e., permissible) by courts in Louisiana. Despite this trend, many commentators continue to insist that the harmless error doctrine is consistent and fairly administered. Yet it is the rare prosecutor who agrees that an error was harmful. Indeed, calling an error harmless does not mislead anyone into thinking that no harm was done. The justice system is always harmed when rules are not followed. Indeed, as lawyers, we are trained to expect rules to mean something. The point is for the justice system to get it right, not make excuses. Unfortunately, as this article seeks to illustrate, the growing trend is that some rules, specifically rules which discourage prosecutorial overreaching, mean very little. In light of this trend, the criminal defense lawyer must exercise extraordinary vigilance. The rules that govern fair play, trials, and the constitution are victims of friendly fire in the war on crime. A change of approach and a honest recognition of the evolution of the harmless error doctrine can restore confidence in a judiciary that is so prosecutor-oriented that fairness is wanting.
No article could put the legal issues more in perspective than Judge Harry T. Edwards' New York University Law Review article on harmless error.1 Judge Edwards' scholarly and insightful writing cannot be updated or improved by this writer; rather, this article seeks to point out the practical effects of the harmless error rule on criminal defendants and Louisiana's criminal justice system. Nevertheless, a short statement of the doctrine bears repeating.
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The harmless error doctrine is necessary, cases say, because there is no such thing as an error-free trial. As a rule of appellate review, harmless error enables courts to uphold convictions in trials riddled with constitutional and statutory blunders. Reversals on appeal should not be granted merely because the judge, prosecution, jury, or defense counsel violated some law. Rather, in order to get a case reversed on appeal, a defendant must show (1) a violation of some law (2) "plus." That "plus" is actual harm to the defendant under the harmless error standard.
Once it is determined that the infraction is subject to harmless error analysis, a court may apply the harmless error doctrine in two ways:
One approach, the "guilt-based approach," requires the reviewing court to assess the factual guilt or innocence of the defendant in light of the untainted evidence in the record. The second approach, the "effect-on-the-verdict approach," requires the reviewing court to determine whether the error at trial influenced the jury and thus contaminated its verdict.2
Chief Judge Edwards concluded that he was both optimistic and skeptical about the future of the harmless error doctrine; he was "optimistic because of recent supreme court decisions that indicated a trend toward an effect-on-the-verdict approach, but skeptical because he was unsure whether-in practice-appellate judges would be able to solve the riddle of harmless error."3 With a twinkle in his eye, he described the doctrine as follows:
[W]hen an appellate court's review of trial proceedings uncovers a legal error that might produce a disfavored result (such as the retrial of a defendant who appears to be guilty), the court may simply call the error "harmless," and the potential aggravation is removed. This approach seems to work like magic. Appellate judges merely apply a "drop" of harmless error, and the coerced confession, warrantless search, erroneous jury instruction, faulty exclusion of evidence, unfair restriction on cross examination, and a host of other errors simply vanish as though they had never occurred. And, most important, the defendant remains in prison to suffer the punishment that he or she appears to deserve.4
As matters stand now, in many criminal cases an error is harmless as long as the appellate court remains convinced of the defendant's guilt; an error warrants reversal only when it raises doubts about the Page 7 defendant's culpability.5 It was Lewis G. Carroll in Alice in Wonderland who wrote, "No no first the verdict then the trial." A trip through Louisiana harmless error law makes one feel a bit like Alice.
If the justice system means anything, it means fairness. Our commitment to a fairness is seriously compromised in reviewing the cases of those who are probably guilty. We tell jurors during voir dire that "probably" is not enough to convict; "beyond a reasonable doubt" is the standard that due process mandates. If a juror declares that, in deciding whether a person is guilty beyond a reasonable doubt, she will consider her political philosophy on crime and substitute it for the legal standard of proof, she would be disqualified for cause. Should judges be permitted to substitute their political philosophy while determining whether a defendant is guilty? The principle is that all defendants are entitled to have a jury to hear the evidence and decide the facts. Juries are to hear evidence that is admitted by law. We have confidence in the jury trial because the jury follows the rules and the judge is there to enforce the rules and make sure that only legally admissible evidence comes before the jury. Confidence in this system is eroded if we say that it is okay for the jury to have heard inadmissible evidence because the defendant is probably guilty anyway. In applying the harmless error rule, if the evidence is not admitted by law, the judge first decides whether the defendant is guilty or innocent and then decides whether the error was harmful. Fair trials are reserved for those who are not probably guilty. To put it another way, the defendant is entitled to voir dire and challenges for cause. If a judge announces that he is predisposed to allowing inadmissable evidence because the defendant is probably guilty, then he should be subject to a challenge for cause or recusal.
If the guilt-based harmlessness approach is used, the impact of error depends on how guilty the judge perceives the defendant to be without the inadmissible evidence. If the defendant is probably guilty, virtually no error can stop the conviction from being upheld (i.e., the "So what? He's guilty" mentality).
If the effect-on-the-verdict approach is used, i.e., if the error influenced the jury and thus contaminated the verdict, the analysis is eclipsed by the judge's conclusion that the defendant is probably guilty. The judge would ask, regardless of this evidence, what reasonable person would think otherwise? Essentially, the judge is saying that I think the defendant is guilty, and that the evidence wouldn't have affected me because the I think the defendant is guilty Page 8 in the first place. If a juror were to say that, she would be challenged for cause. When a judge says it, it is printed in law books and entitled to respect.
When determining whether the defendant is guilty without the contested evidence, what happens to multiple errors? If the judgeI believes the eye witness (vigorous cross examination notwithstanding), believes the confession (the fact that the defendant was intoxicated, brain damaged and perhaps intimidated by smarter policemen notwithstanding), and believes the physical evidence (which alone does not convict but which corroborates the confession and the eye witness), then he is guilty. Or does the judge say that believing any of those things means that the rest of it does not matter? Who then who is the jury? The jury did not hear only legally admissible evidence. The judge is substituting himself for the jury.
In view of the importance that trial by jury has in our legal system, we can be sure that congress did not intend to substitute the belief of appellate judges in the guilt of an accused for the jury's decision. Two functions have merged into one. In the process, the reviewing, impartial judge has vanished beneath the desire not to be criticized for reversing the conviction of someone who is probably guilty.
Why do we not have an article in the Code of Criminal Procedure authorizing directed verdicts of guilt at the conclusion of the state's case, or summary judgment in criminal cases upon the filing of appropriate affidavits by the police officers? This is because such procedures would deny the defendant the right to a trial by jury.6 The harmless error rule also denies the right to trial by jury. The issue is not whether a jury's verdict would have been rendered without the error or inadmissable evidence; such speculation contemplates a guilty verdict that never was rendered. The actual verdict was rendered with the error. To say that the verdict would have been rendered without the evidence is to supplant the jury and violate the jury trial guarantee. It substitutes the judge's view of the defendant's guilt for that of the jury, and sanctions a judge's mystical claim of being impartiality while declaring someone so guilty that no amount of error can deprive him of a fair trial. Such an approach misses the point; innocent and guilty people are entitled to a fair trial. It is for this reason...
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