PREJUDICE-BASED RIGHTS IN CRIMINAL PROCEDURE.

Author:Murray, Justin
 
FREE EXCERPT

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants' procedural rights, forming what I call prejudice-based rights. I focus, in particular, on outcome-centric prejudice-based rights--rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants' most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, "material" evidence within the government's knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an element of these rights, no constitutional violation occurs when the government suppresses favorable evidence, or defense counsel furnishes ineffective assistance, unless there is a reasonable probability that the outcome was affected thereby.

Outcome-centric, right-restricting prejudice rules serve understandable functions: they enable courts to preserve finality by rationing appellate and postconviction relief. To the extent this is their aim, however, such rules sweep far too broadly. For they narrow the scope of defendants' rights not only in appellate and postconviction proceedings, as intended, but also at the trial court level, where finality is not at stake. The overbreadth of these rules is deeply problematic. For one thing, efforts to predict outcome-determinative prejudice ex ante usually amount to little more than guesswork, since relevant information is in short supply during the early stages of a prosecution. And in any event, procedural fairness is essential in every criminal case--not just when fair processes are needed to prevent unfair outcomes. Outcome-centric prejudice-based rights are at odds with that premise, because the entitlements they bestow vanish once a trial judge, prosecutor, or police officer determines that the outcome is a foregone conclusion.

After fleshing out these concerns, I propose a two-pronged strategy for reforming Brady, effective assistance of counsel, and potentially other outcome-centric prejudice-based rights. First, courts should remove prejudice from the definition of these rights, treating prejudice instead as a remedial question--one that would come into play when a convicted defendant seeks relief from an appellate or postconviction court, but generally not in other settings. Second, courts should dismantle the outcome-centric conception of prejudice embedded in these doctrines and replace it with a non-outcome-centric framework that I call contextual harmless error review. These reforms would greatly improve the fairness of the criminal process, and would do so without unduly disturbing the finality of trial court judgments.

INTRODUCTION I. THE LAW OF PREJUDICE-BASED RIGHTS A. Prejudice and Prejudice-Based Rights Defined B. Prejudice-Based Rights in Constitutional Doctrine 1. Brady 2. Effective Assistance of Counsel 3. Additional Illustrations C. Finality and Fairness in the Balance II. CRITIQUE A. Prejudice-Based Rights at the Trial Court Level 1. Prejudice-Based Conduct Rules for Nonjudicial Actors 2. Prejudice-Based Trial Court Remedies B. The Pitfalls of Ex Ante Prejudice Analysis 1. Unfair Outcomes 2. Unfair Process III. PATHS FORWARD A. Moving Prejudice from Rights to Remedies B. Redefining Prejudice CONCLUSION INTRODUCTION

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants' procedural rights, forming what I call prejudice-based rights. (1) I focus, in particular, on outcome-centric prejudice-based rights--rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal procedure's most important rights fit this description. (2) One of these rights, originating in Brady v. Maryland, (3) entitles the defendant to obtain favorable, "material" evidence within the government's knowledge, where material denotes "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (4) The second is the right to effective assistance of counsel, which protects defendants against unreasonable acts or omissions by counsel if, but only if, those errors are prejudicial, meaning a "reasonable probability" that counsel's deficient performance swayed the outcome. (5)

Outcome-centric, right-restricting prejudice rules serve understandable functions. Among other things, they enable courts to preserve the finality of criminal judgments by foreclosing appellate and postconviction relief in cases where the outcome is not on the line. (6) To the extent this is their aim, however, such rules sweep far too broadly. (7) For they narrow the scope of defendants' rights not only in appellate and postconviction proceedings, as intended, but also at the trial court level, (8) where finality is not at stake and where judges and other actors must decide in the first instance what rights mean and how to enforce them. (9)

The overbreadth of these rules is deeply problematic. For one thing, efforts to predict outcome-determinative prejudice ex ante usually amount to little more than guesswork, since at that juncture, relevant information is in short supply regarding each side's theory of the case, the evidence, and other factors that often contribute to case outcomes. These informational gaps, in conjunction with other epistemic obstacles discussed later, make it all but impossible for judges and, especially, prosecutors and police officers to reliably administer outcome-centric prejudice-based rights during the early stages of a criminal prosecution. (10) And in any event, procedural fairness is essential in every criminal case, not just when fair processes are needed to prevent unfair outcomes. Outcome-centric prejudice-based rights are at odds with that premise, because the entitlements they bestow vanish once a trial judge, prosecutor, or police officer decides that the outcome is a foregone conclusion. (11) It is perhaps no coincidence, then, that Brady and the right to effective assistance of counsel are widely regarded as paper tigers--grand symbols of our collective commitment to fairness, to be sure, but symbols that have utterly failed in practice to make good on their respective promises. (12)

The array of problems that outcome-centric, right-restricting prejudice rules cause at the trial court level are not yet well understood. (13) This Article surfaces those problems, then proposes a two-pronged strategy for reforming Brady, effective assistance of counsel, and potentially other outcome-centric prejudice-based rights. (14) First, courts should remove prejudice from the definition of these rights, treating prejudice instead as a remedial question--one that would come into play when a convicted defendant seeks relief from an appellate or postconviction court, but generally not in other settings. (15) Second, courts should dismantle the outcome-centric conception of prejudice embedded in these doctrines, and replace it with a non-outcome-centric framework that I call contextual harmless error review These reforms would greatly improve the fairness of the criminal process, and would do so without unduly disturbing the finality of trial court judgments.

The Article has three Parts. Part I defines core concepts such as prejudice and prejudice-based rights, and then introduces the various doctrinal areas in which courts have woven outcome-determinative prejudice into the fabric of criminal defendants' constitutional rights. Part II states my critique of outcome-centric, right-restricting prejudice rules. And Part III advances my proposal for reform.

  1. THE LAW OF PREJUDICE-BASED RIGHTS

    This Part introduces the law of prejudice-based rights. I begin by laying the definitional groundwork for what follows. To summarize, (1) prejudice refers here to harm, not discrimination; (2) outcome-centric prejudice rules are rules that treat an adverse outcome as the only recognizable kind of harm; and (3) prejudice-based rights are rights that apply only when failing to apply them might cause prejudice. The critique developed later in this Article is targeted primarily at outcome-centric prejudice-based rights. After a preliminary exposition of these concepts, I then discuss Brady and the right to effective assistance of counsel--which are my principal case studies throughout the Article--as well as other areas of criminal procedure in which the Supreme Court has incorporated outcome-centric prejudice requirements into the definition of constitutional rights. And finally, I examine the reasons the Court has articulated to justify outcome-centric, right-restricting prejudice rules, focusing on the Court's suggestion that such rules are needed to strike a balance between procedural fairness to the defendant and the finality of criminal judgments.

    1. Prejudice and Prejudice-Based Rights Defined

      Judge Learned Hand once wrote that "[o]ur procedure has been always haunted by the ghost of the innocent man convicted," which impels judges to be overly solicitous of criminal defendants and their rights. (17) But criminal procedure is also haunted by a second fear that pushes law in the opposite direction: a fear that "the exaltation of [procedural] technicalities" will set the guilty free. (18) Courts have addressed this concern in a variety of ways. One prominent strategy--not coincidentally, a strategy that Judge Hand deployed aggressively--involves restricting defendants' prerogative to complain about nonprejudicial events in the criminal process. (19)

      What criteria do courts use to ascertain whether a procedural event is nonprejudicial? And if it is nonprejudicial, does that mean the event does not violate the defendant's rights? Or does it mean, instead, that although the defendant's rights were violated, the violation is...

To continue reading

FREE SIGN UP