By Reid Allison, J.D. Candidate

            On Wednesday, March 21, the Supreme Court will hear oral argument in Vasquez v. United States.  This case has not received much in the way of media coverage, and is understandably dwarfed by the other high-profile cases of the term like the Arizona immigration case or the challenges to the Affordable Care Act.  Even so, as an ongoing matter of practical importance for appellate litigators, Vasquez is a very important case with broad implications.

            Vasquez involves a question of harmless error analysis—not the flashiest or most controversial area of the law, but a very important one at least for its sheer ubiquity in criminal appeals.[1]  The government’s briefinVasquez spends the first fourteen pages laying out a detailed recitation of the facts underlying the original investigation and cause of action.  This approach to appellate advocacy is within the bounds of current harmless error doctrine, as it relies on adding up the evidence against the defendant to determine that an error is harmless because a jury would have issued a guilty verdict even without the error.  However, this is precisely the variety of argumentation that Vasquez petitions the Court to make clear is unacceptable.

            Though the language in both Supreme Court opinions and circuit court opinions has varied a fair amount over time, there are essentially two schools of thought on how appellate courts should analyze trial errors when determining whether reversal should be ordered.[2]  The first school—advocated by the government in Vasquez—would allow appellate courts to affirm trial court guilty verdicts despite errors when the appellate court finds that the government’s case was strong enough that the error could not have affected the jury’s deliberation and verdict.  The second school would require appellate courts to go beyond the relative strength of the non-erroneous evidence (and, indeed, would not be satisfied by the weight of evidence alone) and investigate whether the error itself affected the jury’s deliberation and verdict.

            Though there is a significant amount of overlap between the two tests, and in a large percentage of cases the distinction will not make a difference, there will still be cases in which the two schools lead to opposite results.  Given the liberty interests implicated in criminal proceedings, this difference in outcome cannot be glossed over, and is, in and of itself, harmful.  As such, the hope is that the Supreme Court in Vasquez will, for the first time, clearly enunciate which of these two schools ought to be applied when appellate courts review trial records for error.

            Viewing the two schools in light of the Federal Rule of Criminal Procedure policies of justice, simplicity of procedure, public confidence in the judicial branch, and elimination of expense and delay, a strong case can be made in favor of each school of harmless error review.[3]  A detailed exploration of the potential effects of an error in each criminal trial will be much more time-consuming than the weight-of-evidence approach, and as such, it will lead to delay in litigation and additional expenses in prosecution and defense.  This is the strongest argument in favor of the weight-of-evidence school, and it is an argument that seems to have strong support among some of the nation’s most esteemed jurists.[4]  Along with this argument is the contention that public confidence in the judiciary is maintained when appellate courts affirm trial court verdicts that are supported by very strong evidence.  Under this contention, confidence would be undermined were appellate courts to reverse trial verdicts based on what the public may deem “technical” errors despite the presence of very strong evidence in support of the verdict.

            On the other hand, the effect-of-the-error school is much more defendant-friendly.  This school finds its strongest support in the Federal Rules policy of promoting a “just determination of every criminal proceeding.”[5]  Where evidence against a defendant is strong or even overwhelming, if a jury’s verdict is in fact significantly affected by the error, justice will not be done without reversal of the jury’s verdict.  Though this approach certainly is more time-consuming and fact-intensive, it does appear to be a much surer and more effective means of maximizing the opportunity for a just determination in each case.  Moreover, depending on what faction of the public is looked to, public confidence in the judiciary could be bolstered by this more defendant-friendly approach.  The effect-of-the-error test would at least superficially tend to give the public more confidence that everything is being done to avoid sentencing innocent defendants to prison terms or death.[6]

            If the decision between the two schools is seen as somewhat of a toss-up, Vasquez makes a secondary argument which may serve well to push the Court in favor of the effect of the error test.  This argument,beginning at page 33 of Vasquez’s merits brief, is that the application of the weight-of-the-evidence test converts appellate courts into a second jury in violation of defendants’ Sixth Amendment rights.  Because the appellate court is in fact determining a hypothetical question—whether the jury would have returned a guilty verdict if the trial had been identical save for the error—in its own opinion, based on its own understanding of the record, this argument appears to have some merit.  At the very least, this argument may serve as a stick to the Court such that the Court employs the constitutional avoidance doctrine and determines that the effect-of-the-error approach is the correct one.

            While the Federal Rules policy of just determinations, the constitutional problems with the weight-of-the-evidence test, and general propositions of lenity in close criminal questions seem all to weigh in favor of the Court making clear that weight of evidence alone is not sufficient to find harmless error, it is entirely uncertain that the Court will hold thusly.  Though the Court arguably should hold that the effect-of-the-error must be examined closely in each, a clear and manageable standard of any kind will constitute a substantial improvement over the current unsettled state of harmless error law.