Patterns of Error

I write here to comment on a wonderful new Article by Justin Murray, who has ably described a persistent problem: judges have wide discretion when finding error harmless, they do so frequently, and they do so with guidance ill-suited to the task. Murray’s Article contributes to a decades-long literature bemoaning the state of harmless error review with a proposal to change the tools of the trade. Murray recommends that judges conduct what he calls a “contextual approach to harmless error review.” Using such an approach, a judge would not just ask whether an error contributed to the outcome, but also the implications of an error for the broader “constellation of interests” served by a particular rule. Murray suggests that these broader considerations may explain at least some of what courts currently do, and that this approach would be less result-based and more sensitive to underlying constitutional values. 

In this Response, I will first ask: why harmless error? Today, judges use many more tools aside from harmless error rules to fend off plagues of errors. I ask whether this proposal comes several decades too late. Harmless error is not as relevant a doctrine as it used to be, now that appellate and postconviction law has become more ornate. Indeed, much of the result-based doctrine has been incorporated into the substance of key constitutional rights. Being more sensitive to underlying constitutional values would require changing constitutional doctrine and not just harmless error rules. Second, I ask whether the proposed cure will actually help judges to differentiate between the harmless and the harmful. The proposal risks magnifying cognitive bias. Encouraging judges to confirm results, as current doctrine does, is troubling, but a contextual approach might not reduce that problem and it could separately liberate judges to further rely on their own value judgments. Murray is right to be cautious about the implications of the proposal. Third, I suggest that we redirect our attention to the bulk of the swarm. Today, almost all criminal cases are plea bargained. I ask whether this proposal might instead prove more useful in an area Murray does not address: reviewing errors in cases that are plea bargained. Fourth, I turn to the source of the swarm itself. I examine the potential use of judicial review to examine patterns of errors in the aggregate using mechanisms like consolidation of cases. Our system not only poorly identifies errors in individual cases, but may also systematically deny relief to errors that do affect results, as well as fairness, dignity, and other interests. I applaud the effort to begin a conversation about how to rethink our system of appeals and postconviction review. Unfortunately, harmless error is just one of a host of related problems and other doctrines have eclipsed it in importance. The infestation may be so serious that we need to rebuild from the ground up.