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Why It Is Difficult to Win a Criminal Appeal: The Harmless Error Rule

Kish Law LLC

Here at beloved K&L we do a fair number of appeals in criminal cases, mostly in federal court but occasionally in the state court system. Winning an appeal in a criminal case is always hard, it takes lots of work to understand what happened in the lower court, it takes even more time and energy to figure out all the potential legal issues, and then it takes more time still to write, revise, refine and get the arguments down in a manner that is both correct yet easily understood. Even when we do all that, we face one more hurdle before we can get relief for our clients; the “Harmless Error” rule. A case decided last week by all 11 Judges on the federal Court of Appeals here in Atlanta clearly shows this difficulty. The decision is United States v. Roy, and can be found here.

First, the “harmless error” rule. For a long time, courts reversed criminal cases whenever the trial judge made an error or mistake, such as allowing a prosecutor to use inadmissible evidence, or failing to properly instruct the jury on the elements of a crime. About 50 years ago the courts began using a rule that looks to whether the error or mistake “harmed” the Defendant, or if the mistake was just a “technicality” and had no impact on the overall result. If the trial judge made a mistake, under the harmless error analysis the court of appeals then looks to whether the error contributed to the jury’s verdict. The beneficiary of the error (meaning the prosecutors in criminal cases) had the burden on appeal to show beyond a reasonable doubt that the error did not contribute to the conviction. So far, so good.

Over the years, the United States Supreme Court carved out some exceptions to the harmless error doctrine. There are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless. They call these kinds of errors “structural defects” in the process. One such structural defect is the total deprivation of counsel, another is the right to be tried before an unbiased judge. Other structural rights that get around the harmless error rule are violations of: the right of self-representation, the right to a public trial and the right to have the jury instructed on the theory or proof beyond a reasonable doubt. For all these errors, the weighing and balancing from the harmless error test is not used and the lawyer generally gets an automatic reversal for his or her client.

Now we come to the recent Eleventh Circuit decision. It was decided by what we lawyers call the “en banc” court, meaning that after an initial set of 3 judges took a whack at the case all 11 decided to hear it together. The case itself is a horrible child pornography/exploitation trial from South Florida. For some reason, the records from the case indicate that the Defendant’s lawyer was not in the courtroom for one of the 13 witnesses, and returned after missing 7 questions. At first glance, this seems like the “total deprivation of counsel” that gets around the weighing and balancing of the error against the harm. However, the majority of the Judges carved out an exception to the exception, meaning they applied the harmless error doctrine to a structural defect in the process. In essence, the majority says that even when counsel is completely out of the situation, the harmless error rule will apply if the evidence introduced during counsel’s absence is not “inculpatory”, or damaging.

This is a big deal in the world of criminal appeals. Many judges wrote concurring or dissenting opinions, a total of 281 pages for the entire case. It is also a big deal because I can anticipate prosecutors now citing to this case as a reason to expand the harmless error doctrine even further, thus preventing us from helping our clients on appeal. We will keep a close eye on the case to see if the Supreme Court weighs in on the subject.

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