For the Defense - Vol. 8, Issue 1 - 22

No Harm, No Foul: Don't
Let Procedural Rules Erode
Substantive Rights
I
s a rule really a rule if there's no consequence for breaking it? Is a
right really a right if violating it doesn't undermine a conviction?
First-year law students hear early on that " the accused isn't
entitled to a perfect trial, but a fair one. " Police procedurals
teach television audiences that " getting off on a technicality " is
a bad thing. We criminal defense lawyers know that what others
call " technicalities " have real substance; they define and protect
individual rights and liberties. Yet even we have to admit that our
criminal legal system would collapse if every error required a doover.
Mistakes happen.
" Harmless error " and its relatives tell us whether an error merits
reversal on appeal or, even better, a do-over granted by the trial
judge before you get there.1
Saying that the conviction stands when
the error was " harmless " to the defendant has intuitive appeal. But
how does a court decide whether an error was harmless? Setting
the bar for harmlessness too high-too readily finding harm and
22 For The Defense l Vol. 8, Issue 1
Lisa A. Mathewson
reversing convictions-threatens the vaunted goal of judicial
economy. And setting the bar too low-too readily calling errors
" harmless " and letting convictions stand despite them-threatens
something even more important: the substantive rights that were
violated when the error happened.
That danger motivated the Pennsylvania Supreme Court to
endorse for all criminal cases a strict standard for harmlessness that
federal courts reserve for constitutional claims.2
It explained that
" a more relaxed harmless error standard " leaves substantive rights
" inadequately protected. " 3
It also urged courts to " be careful "
when applying harmless error, " for if the violation of a rule is too
readily held harmless, the importance and effectiveness of the rule
is denigrated. " 4
In simpler terms: " no harm " may as well be " no foul. " That's
quite concretely true for your client, who'll serve the same

For the Defense - Vol. 8, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 1

Contents
For the Defense - Vol. 8, Issue 1 - 1
For the Defense - Vol. 8, Issue 1 - 2
For the Defense - Vol. 8, Issue 1 - Contents
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