Argument recap: More disagreement, please
When counsel in a criminal case objects to an erroneous decision by the trial court, an appellate court must reverse unless the error does not affect the objecting party’s substantial rights. The Supreme Court granted certiorari in Vasquez v. United States because the petitioner argued that the Seventh Circuit applied the wrong test: rather than examine the effect of the error – the erroneous admission of hearsay statements about the lawyer’s impressions of his client’s odds of success – on the jury’s thought process, the court simply decided that the government’s other evidence would have motivated the jury to convict the defendant anyway.
Vasquez’s petition and brief on the merits argued forcefully that the court of appeals erred because it did not begin its examination by considering the nature and impact of the error. Had the court done so, he argued, it could not have reached any other result but that the error was not harmless. The government responded, defending the court of appeals’ process and its result. But at oral argument on Wednesday, the Court did not witness a “battle of the standards,” in which Vasquez and the government clashed over the appropriate test to determine harmlessness. Instead, many Justices spent the majority of the hour attempting to figure out (without much success) exactly how the parties’ articulations of the harmless error rule differed from one another. They concluded that the parties’ dispute boils down to perhaps a single disagreement: whether an appellate court should consider evidence of the jury’s behavior to determine whether an error was harmless.
As Vasquez’s attorney, Beau Brindley, took the lectern, several Justices – including Chief Justice Roberts and Justices Scalia, Breyer, Alito, and Kagan – expressed concern that the test he was advocating, i.e., that a reviewing court must consider how the error affected the verdict, was functionally the same as the test the government was advocating, i.e., that a reviewing court should affirm if the jury would have reached the same verdict without the error. Brindley explained that the key difference, in his view, was that his test requires the appellate court to focus first on the nature of the error itself, and not to merely consider the rest of the record as if the error had not occurred.
But the Justices weren’t convinced. A chorus of jurists expressed the view that regardless of the phrasing, both parties seemed to be asking the same question: Would the result of the trial have been different without the error? When Brindley suggested that an error might be harmful even if a reviewing court thought that the verdict would have been the same, so long as the error “contributed to the verdict,” Justice Scalia expressed skepticism, pointing out that every error would be harmful under that rule because every error in some way contributes to the ultimate result. At that point, Brindley gave his clearest articulation of the rule he wanted the Justices to adopt: If, “in light of all the other evidence, the error was cumulative or it was essentially uncontested, and then you can find that error is harmless, it couldn’t have contributed to the verdict, and we know that to the right degree of certitude.” Otherwise, Brindley argued, an appellate court must reverse.
This statement notwithstanding, the Justices still appeared to have trouble discerning how Vasquez’s rule was different from the government’s. Led by Justice Alito, the Court identified a distinction between the parties’ positions, latching on to the fact that Vasquez had urged reviewing courts to consider how the actual jury reacted to the error, while the government argued that reviewing courts should consider whether a hypothetical “reasonable” jury would have found the evidence at trial persuasive enough to convict. The key distinction is that under Vasquez’s rule, the appellate court can consider evidence about the jury’s behavior, but under the government’s rule, the court cannot.
Justice Alito expressed skepticism about Vasquez’s position, asking whether it requires speculation about the jury’s state of mind from an appellate court. Brindley responded that the appellate court had the obligation to consider the entire record, including the jury’s behavior, which in this case included lengthy deliberations, a jury note requesting the tainted testimony, as well as a split verdict that suggested a compromise in a close case. Disregarding that evidence, Brindley argued, would place the court in the role of the jury.
When Anthony Yang stood up for the government, Justice Kagan gave him a tough hypothetical in which the jury’s behavior showed that the case was truly close, and that the jury may have been influenced by an error. The Justice asked why a reviewing court should ignore that evidence when making a harmless error determination. In response, Yang softened the government’s position, arguing that evidence of jury behavior could be considered, but cautiously, since it typically provides little insight into what ultimately motivates the jury’s verdict. He maintained that the court should still focus on the evidence at trial, but he appeared to allow some room to consider other variables as well.
Later, Yang altered his stance, arguing that an appellate court could consider what a particular jury did, but only as a tool to ultimately determine what a rational jury would have done. That raised eyebrows from Chief Justice Roberts, as well as Justices Ginsburg, Kennedy, Breyer, and Kagan, all of whom seemed to think that if it was clear from the record that a particular jury was influenced by an error, then the reviewing court should take that into account. The contrary result, Justices Ginsburg and Kagan suggested, would be the equivalent of a directed verdict for the government in a criminal case, as the reviewing court would replace the real jury with a hypothetical one of its own creation.
Ultimately, Justice Alito offered Yang a way out: a rule that reviewing courts should generally refer to a hypothetical reasonable jury, absent strong evidence that the particular jury in a given case was influenced by the error. Nobody had a chance to say, however, whether this case would qualify as the sort of exceptional circumstance that would permit an inquiry into the jury’s motivations.
The Justices were also unsure whether the Seventh Circuit actually erred. Some, including the Chief Justice and Justice Kennedy, questioned whether the Seventh Circuit had failed to account for the error. Others, including especially Justice Ginsburg, seemed convinced that the error was significant, and that the Seventh Circuit’s failure to assess its impact on the other evidence in the case was a major oversight. Overall, however, the mood among the Justices seemed to be one of disappointment at the similarities between the parties’ position, and the fact-bound nature of the dispute. As Justice Alito stated, “[M]aybe the majority in the court of appeals was wrong in its application of the harmless-error test. I don’t think that’s the reason why we took this . . . case.”