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Thursday November 26, 2015
Posted: Jan 21, 2014

Harmless Error: What’s in a Name?

Harmless Error — Criminal law and the criminal justice system, explained

I’m a criminal defense attorney. It’s a strange job. When the government threatens to punish its citizens, some of them come to me for help. I work within the criminal process but, a lot of the time, I work against the process. That means that people tell me I’m wrong a lot and that I’m expected to lose. It’s pretty fantastic and I can’t imagine doing anything else.

More recently, I began typing stuff into the internet. In 2012 I started my blog, Harmless Error where I write about interesting cases and issues in criminal law. Check out some of my posts about:

Starting now, I’ll be writing a version of the blog here. These posts should be less technical, a bit shorter and more frequent.

What’s Harmless Error?

Don't think I'm suggesting that crime is harmless, that's not it at all. Harmless Error is a legal doctrine applied when a defendant appeals their conviction. It allows the reviewing court to acknowledge that mistakes were made, but to decide that the errors aren’t enough to invalidate the conviction. To the defendant and their lawyer, it means: “You’re right, but you still lose.” Also, it’s kind of a catchy turn of phrase.

The term has a particular resonance for me and for many criminal defense lawyers since it speaks to the great possibility and failure of our criminal justice system. Harmless error means that our courts have the insight to appreciate their own failings, but also the authority to disregard those failings and to preserve the integrity of the conviction rather than the life the conviction will impact.

Criminal Law in the News

This blog is all about criminal law and the story behind the headlines. To understand that news, you need to know a bit about the process. Here are a few things to keep in mind as you read those stories:

  • Defendants in serious cases will plead not guilty at arraignment every single time. Period. In fact, if you try to plead guilty to a felony at arraignment, the judge will probably reject that and enter a not guilty plea for you. A not guilty plea preserves the defendant’s rights to review the evidence, consult with a lawyer and figure out what’s going on before they decide to plead guilty or go to trial.
  • The defense attorney is not blinded by a faith in every client’s innocence and the prosecutor is not driven by personal hatred for the accused. There is a process, everyone has a role to play and that often has little to do with personal opinions about the case.
  • Cases will go to trial even when no one expects a not guilty verdict. Sometimes, there’s just no other option.
  • Defendants will appeal a conviction, especially in a serious case, and they will lose that appeal almost every time. Don’t take it personally, this is the only card they have and they need to play that card. Anyway, don’t worry. Even if the appellate court finds a mistake, it’s probably harmless error.

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