The Concept of Harm in Constitutional Criminal Procedure

56 Pages Posted: 8 Mar 2012

Date Written: March 8, 2012


Harm is a pervasive doctrinal concept in constitutional criminal procedure. The Sixth Amendment protects a criminal defendant’s right to effective assistance of counsel — so long as she can prove that counsel’s deficient performance prejudiced her defense. On direct appeal, a reviewing court must vacate a criminal conviction obtained in violation of constitutional rights — unless the government can prove that the error was harmless. When challenging the constitutionality of a conviction via the writ of habeas corpus, a state prisoner is only permitted to advance claims previously raised in the state court system — unless she can demonstrate good cause for not raising the claim earlier, as well as actual prejudice flowing from the constitutional violation. No constitutional or statutory provision dictates that harm-related constructs ought to play a role in these rules. Nevertheless, courts have grafted such elements deeply into their doctrinal structure. The same pattern recurs in countless other facets of constitutional criminal procedure.

Harm is not only pervasive; it is also problematic. Harm is often transplanted into rights and remedies without adequate attention to constitutional text, history and structure. Moreover, the Constitution recognizes and protects against many forms of harm — harm to innocence, to dignity, and to robust civic engagement —, yet judicial approaches to harm tend to flatten out this complexity and focus solely on the accuracy-promoting and innocence-protecting functions of procedural rights. Even once the relevant category of harm has been identified, measuring harm can be exceptionally difficult — sometimes, impossible — in view of the epistemic and institutional limitations of courts. Nevertheless, judges routinely charge into this thicket, fully confident in their ability to discern when constitutionally significant procedural lapses have harmed criminal defendants, without the guidance of general principles or theoretical foundations.

This article aims to sketch the general outlines of such a theory. Most of the insights that, taken together, would comprise a sensible theory of harm can be found, in fragmentary form, dispersed in many different doctrinal niches. At the same time, however, other procedural rules reflect a failure to grasp those very same insights. My task, therefore, is threefold: first, to gather together the diverse threads of wisdom reflected in existing law; second, to weave those threads into a unified whole, which I will refer to as a common law of harm; and finally, to demonstrate the potency of this reconstructed common law of harm as a method of critique and reform for constitutional criminal procedure.

Keywords: harm, prejudice, harmless error review, constitutional criminal procedure

Suggested Citation

Murray, Justin, The Concept of Harm in Constitutional Criminal Procedure (March 8, 2012). Available at SSRN: or

Justin Murray (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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