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404(B) and harmless error

So Carl Morris gets a new trial.  He was convicted back in 2009 of raping his stepdaughter when she was in the 2nd grade, with the prosecution introducing evidence that he propositioned his adult stepdaughter, and kicked the dog if his wife refused to have sex with him. 

If you're wondering what the hell that has to do with child rape, you're not alone:  the 9th District reversed, finding that to be improper.  The Supreme Court reversed that, holding that the 9th should have reviewed the error for abuse of discretion instead of de novo.  On remand, the 9th stuck to its guns, again reversing the conviction.  So up it went again, this time on the argument of what standard of harmless error should have been applied:  the lead opinion (one judge dissented, and the other concurred only in judgment) had applied the standard for constitutional error:  harmless beyond a reasonable doubt.

And last week, the Supreme Court, by a 4-3 vote, decided that was proper

If you'd thought that the concept of harmless error was a simple one, you probably think that string theory is child's play, too.  Harmless error isn't defined by the rules; the closest they come is CrimR 52(A), which just says that "any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded."  Flip that around, and that means if the error does affect substantial rights, it requires reversal.

But how do you determine if an error affects a defendant's substantial rights?  Lanzinger's opinion for the majority pulls in the standard used by RC 2945.83 in determining whether to grant a new trial:  the motion shouldn't be granted "unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby."

So, a defendant has to show prejudice.  That's not a problem with 404(B) evidence, the court decides.  Usually, the State can't use "propensity" evidence - evidence that the defendant's been a bad guy in the past, and thus probably committed the crime he's charged with because, well, he's a bad guy.  But EvidR 404(B) allows introduction of prior "bad acts" as proof of motive, intent, absence of mistake or accident, or plan or scheme. 

As I've mentioned before, introduction of 404(B) evidence is usually outcome-determinative.  It's bad enough that the jury finds out your client has prior convictions; if they find out that he has prior convictions for the same offense he's on trial for here, it's Game Over.  The majority agrees that erroneous admission of 404(B) evidence is a "singular problem," and without much more, decides to apply the standard for constitutional error:  the error must be harmless beyond a reasonable doubt.

What does that mean?  That's not exactly crystal-clear either.  Kennedy's dissent asserts the following difference:

A constitutional error is harmless if it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.  By contrast, the standard for nonconstitutional error provides that such an error is harmless if it did not have a substantial and injurious effect or influence in determining the jury's verdict.

That's backed up by several US Supreme Court cases, and it's not a bad definition, because it focuses attention where it should be:  on the effect the error had on the jury's deliberations.  The problem, though, then becomes how you measure that.  Most courts have no trouble finding harmless error where the evidence against the defendant is overwhelming, but many courts don't find it necessary to go that far:  the error can still be disregarded if the evidence of guilt is "substantial."  And the larger problem is that "overwhelming" or "substantial" is one of those in-the-eye-of-the-beholder things.

Every appellate lawyer has his Harmless Error Horror Story.  The court's opinions in Morris, both majority and dissent, should work to reduce those.  And as far as 404(B) evidence is concerned, Morris spells that out:  for a conviction to be upheld where 404(B) evidence has been improperly admitted, you have to show that the error was harmless beyond a reasonable doubt.

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