The doctrine of harmless error in criminal cases in Massachusetts.

AuthorChaves, Amanda M.

    The life of sixteen-year-old Kelsea Owens ended abruptly on a summer evening after she made plans to "hang out" with two friends. (1) Kelsea was picked up by her girlfriend, amanda Gagne, and the two girls went to the home of Kelsea's older male friend, twenty-year-old Joshua Whitaker. (2) Amanda left Kelsea at Whitaker's house to move her car; in the forty-five minutes that amanda was gone, Kelsea was brutally beaten, sustaining large bruises on her abdomen and numerous "extreme and very severe" fractures to her skull, causing her death. (3) Kelsea's body was found behind Whitaker's home, lying on her back with her "face bloodied ... [t]he 'shimmery' blouse she had been wearing was now around her wrists, her bra was above her breasts ... and she wore no panties." (4) Whitaker was arrested, tried, and convicted of first-degree murder. (5) After less than four hours of jury deliberation, he was sentenced to life in prison without the possibility of parole for the vicious murder of Kelsea. (6)

    Twenty years earlier, another tragic event occurred when the lives of two long-time companions, twenty-three-year-old John Bottari and twenty-year-old Frank Angelo Chiuchiolo, ended on a cold February night in Boston's North End. (7) Their bodies were found lying twenty feet apart from one another in "bloodstained" snow after three gunmen opened fire, shooting one victim sixteen times and the other seven times. (8) According to witness testimony, the two victims had planned to rob one of three gunmen, who had been forewarned and was able to settle the score before the unarmed friends had the opportunity to commit the robbery. (9) The moment that Bottari and Chiuchiolo entered the park, Paul L. Tanso and two accomplices pulled out handguns and repeatedly fired at the two victims. (10) A witness said that one of Tanso's accomplices was so callous and filled with rage that he bent over one the victims' bodies and "fire[d] at least five shots into the body before fleeing." (11)

    Lives were prematurely taken in very different, but similarly brutal ways in these two homicides. (12) In both cases, the perpetrators were found, charged, and convicted of first-degree murder. (13) In the case involving the murder of sixteen-year-old Kelsea, the Massachusetts Supreme Judicial Court ("SJC") affirmed the defendant's conviction despite the lower court's error in depriving the defendant of his constitutional right to confront witnesses under the Confrontation Clause. (14) However, in the case involving the murder of the two young men in Boston's North End, the SJC reversed and remanded the defendant's conviction for the same constitutional error, reasoning that the trial court's error resulted in harm to the defendant. (15) Subsequently, the jury acquitted the defendant in a second trial. (16)

    This Note will examine the doctrine of harmless error in criminal cases, the issues in its application, and the inconsistencies of its application throughout the Massachusetts court system. (17) Part II.A describes the broad history of the doctrine from English Common Law through present United States Supreme Court rulings. (18) Part II.B discusses Massachusetts's historical use of the doctrine. (19) Part III.A discusses current trends of harmless-error analysis in other jurisdictions. (20) Part III.B discusses Massachusetts's use of the doctrine from the late 1960s and early 1970s to the present, as compared to other jurisdictions. (21) Part IV analyzes the current application of harmless error in Massachusetts. (22) Part V concludes that Massachusetts courts are inconsistent in their finding of whether an error is harmless, and inconsistent in which standard they use to analyze such an error. (23) Part V will also discuss how Massachusetts appellate courts may approach the harmless-error analysis in a more consistent manner. (24)


    The American justice system is not free from mistake or flaw; it is presumed that our process is a fair one, but does not guarantee a perfect trial or a perfect result. (25) During the course of a trial, courts can potentially commit any number of errors. (26) Appellate courts review alleged errors to correct them if found prejudicial to the defendant or dismiss them if deemed harmless. (27) Due to the impracticability and high cost of retrying every case in which an error occurs, all jurisdictions have adopted the harmless-error doctrine in some fashion to allow appellate courts to affirm lower court decisions provided that the error was inconsequential or harmless. (28)

    1. Broad History of the Doctrine

      The origin of the harmless-error doctrine comes from English Common Law. (29) The original rule, known as the "Exchequer Rule," established the practice of automatic reversal for any error concerning the admission or exclusion of evidence. (30) In response to the "hypertechnicality" of the Exchequer Rule, Parliament passed the Judicature Act of 1873, decreeing that in civil cases "[a] new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial...." (31) Over three decades later, Parliament expanded this rule to criminal cases by passing the Criminal Appeal Act, thus authorizing the "harmless error" rule by decreeing "that the court may, notwithstanding that they are of [the] opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they considered that no substantial miscarriage of justice has actually occurred." (32)

      Adopting English common law, early American courts embraced the English judicial philosophy that all trial errors were harmful, thus necessitating a new trial. (33) Early cases across the states exemplify this judicial framework. (34) In 1897, the United States Supreme Court, as a matter of first impression in Bram v. United States: (35) held that once a constitutional error is discovered during a criminal trial, any conviction must be automatically reversed. (36) In response to public outcry regarding the vast amount of reversals, in 1919 Congress amended section 269 of the Judicial Code (as amended at 28 U.S.C. [section] 391) to allow appellate courts to decide cases based on the entire record "without regard to technical errors or defects" that do not "affect the substantial rights of the parties." (37) In 1946, the 1919 harmless-error statute was implemented in the Federal Rules of Criminal Procedure as Rule 52(a). (38)

      The Supreme Court fully considered the importance of the harmless-error statute for the first time in Kotteakos v. United States, (39) and in doing so set forth a test for harmless error. (40) Justice Rutledge's test reaffirmed that constitutional errors at trial were not subject to a harmless-error analysis. (41) Kotteakos remained the standard for nearly twenty years, until the Supreme Court, in Chapman v. California, (42) ruled that some constitutional errors could be deemed harmless. (43) The standard for harmless-error analysis set forth by Chapman declared that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt" that the error complained of did not contribute to the verdict obtained. (44)

      Only two years after Chapman, the Supreme Court complicated its definition of "harm" in Harrington v. California (45) In Harrington, Justice Brennan's dissent pointed out that the majority's ruling allows a conviction to stand, despite the occurrence of a constitutional error, provided that evidence against the defendant was "overwhelming" and that the erroneously admitted evidence was merely "cumulative." (46) The shift to an "overwhelming evidence of guilt" test after Harrington allowed the Court to begin sidestepping the issue of whether a constitutional error occurred by simply holding an error harmless if there was overwhelming evidence of guilt. (47) As a result, the Court has since shifted between two standards: the "effect on the verdict" standard of Chapman and the "overwhelming evidence of guilt" standard of Harrington. (48)

      The Court attempted to elaborate on the Harrington standard in Delaware v. Van Arsdall (49) The Van Arsdall Court listed factors that courts should analyze when reviewing whether an error is harmless or not; specifically, the error of improper admission of uncross-examined testimony. (50) These factors directed appellate courts to consider both "tainted" and "untainted" evidence, thus further blending the Chapman and Harrington standards into one hybrid test for harmless error. (51)

      In 1991, a divided Court further complicated the test of harmless error in the landmark case of Arizona v. Fulminante (52) by attempting to offer a framework to determine which constitutional errors required automatic reversal, and which were subject to a harmless-error review. (53) The Court stated that "trial errors" are susceptible to a harmless-error analysis while "structural defects" are not. (54) Despite the distinction between these types of errors, the Court was evenly divided on how to apply the proper harmless-error analysis. (55)

    2. History of Harmless Error in Massachusetts Criminal Cases

      The need to address errors within a trial have existed since the beginning of the American justice system. (56) Following the English practice, Massachusetts appellate courts from the early eighteenth century to the early twentieth century found most errors to be reversible; however, the idea that an error could be harmless has always existed despite the lack of a developed doctrine. (57) After Congress's passage of the first harmless-error statute, Massachusetts judges began to use the term "harmless" or simply stated that an error did not harm a defendant. (58) Despite the use...

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