Criminal Procedure Rights and Harmless Error: A Response to Professor Epps

Abstract

The harmless error doctrine is beset with problems, both theoretical and practical. In Harmless Error and Substantial Rights, recently published in the Harvard Law Review, Professor Daniel Epps proposes a reconceptualization of constitutional criminal procedure rights that is designed to address these problems. Epps argues that those constitutional criminal procedure rights that are capable of being violated by prosecutors and judges in nonharmful ways should be redefined to include a require- ment that their violation causes the right holder harm. In other words, what we now regard as a nonharmful violation of a constitutional crimi- nal procedure right would not amount to a constitutional violation at all.

This Response argues that, while harmless error doctrine should indeed be reformed, acceptance of Epps’s proposal would create more problems than it would solve. Specifically, the narrower constitutional precedent that would result from implementing the proposal would cause mischief when translated into other adjudicatory and lawmaking con- texts. The Response thus defends the conventional understanding of harmless error review as a remedial inquiry. It does so by summarizing Epps’s argument, laying out concerns about certain transcontexual e ects if it were to be accepted, and proposing some alternative pathways to reform.