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Argument preview: What makes an error harmless?

Tomorrow the Court will hear argument in Vasquez v. United States, which relates to the meaning of the harmless error rule in Federal Rule of Criminal Procedure 52(a) and 28 U.S.C. § 2111.  These similarly worded provisions govern appellate review of any trial error to which counsel objected below; they provide that if an error does not affect “substantial rights,” then it was harmless, and an appellate court should not reverse to correct it.  The proper scope of the harmless error rule has divided the courts of appeals.  Many hold that unless the government proves that the error could not have had any material effect on the proceedings below, it cannot be harmless.  Others hold errors harmless when the evidence of the defendant’s guilt is overwhelming.  Because the harmless error rule governs so many cases, its meaning is one of the most important questions in criminal appellate law.

The trial and the opinion below

Petitioner Alexander Vasquez was charged with conspiracy to possess more than 500 grams of cocaine as well as an attempt to do so.  He was tried alongside two co-defendants, Joel Perez and Carlos Cruz.  The government presented evidence that Vasquez drove Perez’s car to the site of a drug deal that law enforcement officials had orchestrated.  Vasquez waited in the car during the deal, which ended prematurely when officers moved in.  Vasquez and Perez fled the scene and were later apprehended.  Twenty-three thousand dollars were found hidden in the car.  The government also introduced evidence of a similar deal for which Vasquez was convicted in 2002, as well as phone records showing significant contact between Vasquez and Perez on the day of the deal.  Cruz also testified against Vasquez, which may not have helped the government since Cruz was an acknowledged liar.

The defense called Perez’s wife, Marina, who testified that Vasquez knew nothing of the deal.  Marina stated that Perez had asked her to pick him up, and that she asked Vasquez to go instead.  She also testified that Vasquez took Perez’s car because his own car was blocked in.  The government recalled Marina on rebuttal, where it introduced tapes of phone calls between Marina and Perez, made while Perez was incarcerated.  On the tapes, Marina states that she had spoken with Vasquez’s attorney, who had stated that “everybody [was] going to lose” if the case went to trial.  Those hearsay statements were admitted for their truth over Vasquez’s objection.  After lengthy deliberations, the jury returned a split verdict, acquitting Vasquez of the attempt charge, but convicting him of conspiracy.

On appeal, Vasquez raised several errors, including the admission of the tapes for the truth of the statements therein.  The Seventh Circuit acknowledged the error, but held it harmless.  The court explained that the harmless error rule requires “the government to prove that a reasonable jury would have reached the same verdict without the challenged evidence.”   After cataloguing the government’s other evidence, the court held that because that evidence “would have moved the jury to convict Vasquez without a nudge from anything it heard in the government’s rebuttal case,” the error was harmless.

The parties’ arguments

The parties cite the same authorities, but set forth divergent interpretations of those cases.  Vasquez contends that the Seventh Circuit erred by considering only the strength of the government’s admissible evidence.  He argues that in so doing, the court failed to examine what effect the error might have had on the jury’s reasoning.  He relies primarily on Kotteakos v. United States, in which the Court held that the question is not whether the members of the jury were “right in their judgment, regardless of the error or its effect upon the verdict.  It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.”  Vasquez criticizes courts like the Seventh Circuit, which focus on the defendant’s guilt as opposed to the effect of the error, as unfaithful to Kotteakos and its progeny.  He spends the majority of his brief arguing that the Court has consistently applied the Kotteakos rule except when faced with extreme facts, e.g., when the erroneously admitted evidence was cumulative with other evidence.  Vasquez also makes a constitutional avoidance argument:  When an appellate court makes its own assessment of a defendant’s guilt, or weighs the evidence in a case, it usurps the role that the Sixth Amendment reserves for the jury.  He therefore urges the Court to embrace a narrower version of the harmless error rule.

Vasquez argues that the error here was not harmless.  He characterizes the case against him as “a close one,” noting that the government’s chief witness was an acknowledged liar, and that Vasquez had contested the significance of the government’s proof on every element of the offense.  Vasquez also notes flaws in the Seventh Circuit’s decision, including that the court ignored the shortcomings of the government’s case, ignored Marina Perez’s testimony, and ignored the jury’s actions, including the split verdict and the lengthy deliberations.  Finally, Vasquez argues that the error was inherently prejudicial because it conveyed the impression that Vasquez’s own lawyer did not believe in his case.

The United States emphasizes different language in Kotteakos.  In its view, all it requires is a “fair assurance” that the error did not have “a substantial and injurious effect or influence in determining the jury’s verdict.”  The government sets forth a three-part framework for determining harmlessness.  It argues that first, the “conclusion of harmlessness must reflect an appropriate level of confidence.”  Second, the analysis must be objective, referring to a “reasonable jury” as opposed to the jury in any particular case.  Finally, the analysis must weigh the probative force of the evidence that the jury presumably considered against the likely probative force of the error.  Respondent emphasizes that “when the government’s case is sufficiently strong, a court can find that the error would not have affected the outcome.”  It also notes the policy justifications for the harmless error rule – i.e., that trial errors are inevitable, but the cost of a retrial is both significant and unjustified when the result is a foregone conclusion.  In response to Vasquez’s Sixth Amendment argument, the government argues that because Vasquez received a trial by jury, which decided every element of the offense, his right to a jury trial was vindicated.

The government contends that the error here was harmless.  It notes that the Seventh Circuit indicated that it was considering the “evidence as a whole,” and that the government’s case was strong while the defense was weak.  It also notes that the tapes were admissible for purposes other than their truth, and so the jury would have heard the tapes in any event.  It argues that there is a “fair assurance” that the absence of a limiting instruction, in light of all of the other evidence, did not alter the outcome of the trial, and that the error was therefore harmless.

Issues to watch for at argument

It will be interesting to see whether the Court regards the harmless error rule as primarily concerned with process, or instead with results.  Vasquez argues that the Seventh Circuit erred because it failed to consider how close the case was, and failed as well to analyze the effect of the error on the overall verdict.  But if the Seventh Circuit had gone through the motions of such an analysis and reached the same conclusion, it is not clear what else Vasquez would say the court was required to do.  The rules set forth by the United States, on the other hand, are more concerned with the outcome of the analysis.

Another interesting question is whether the Court will treat the error in this case as serious or not.  Vasquez argues that the error was global – i.e., that because the tapes suggested that even his attorney didn’t believe in his defense, they tainted the jury’s consideration of the case as a whole.  Respondent argues that the error was minor – the tapes would have been admitted anyway, and the court’s only error was failure to provide a limiting instruction.  Both characterizations have some force to them.

Finally, this case is unusual in that the attorney arguing for Vasquez is the very trial lawyer who Marina Perez described in the phone calls to her husband.  Beau Brindley will argue his first case before the Justices, and it is possible that one of them will be interested in whether he ever told Marina Perez that he thought his client was going to lose.

Recommended Citation: Tejinder Singh, Argument preview: What makes an error harmless?, SCOTUSblog (Mar. 20, 2012, 2:16 PM),