No Harm, No Foul--Is The Error Prejudicial Or Harmless?
Law360, New York (March 29, 2013, 12:01 PM ET) -- The late Chick Hearn was a legendary sportscaster who covered Los Angeles Lakers basketball games for many years. He is credited with coining many expressions, such as “slam dunk” and “air ball.” One expression that some people have attributed to him is “no harm, no foul.”
That statement means that — unless a basketball player has been hurt by contact initiated by another player or that other player has gained an advantage by that contact — the referee should not call a foul on the play. Other sports have similar concepts. Soccer fans know that challenges that might be called fouls in the middle of the field often are not called fouls in the penalty area — because there must be real harm or advantage before a penalty kick is awarded. The referee is essentially saying, “You’re not getting a penalty kick for that.”
Appellate courts often have the same attitude. “OK, maybe the trial court erred, but you’re not getting a reversal or a new trial for that.” In other words, no harm, no foul. Thus, even if an appellant establishes that the trial court erred, the trial court’s decision might not be disturbed. The error must also be prejudicial and not simply harmless. Indeed, the federal “harmless error” statute provides that “[o]n the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”
But who bears the burden of showing prejudice and how is that showing made? What errors are prejudicial and what errors are merely harmless? In making this determination, what standards are followed and how are they different in civil and criminal cases? What follows is by no means an exhaustive discussion of these issues. But it should serve as an overview for counsel and as a reminder to keep these issues in mind when handling an appeal.
The Federal Rules of Criminal Procedure state that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded,” and that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Thus, when the criminal defendant properly objected to the erroneous ruling in the district court, the government “bears the burden of persuasion with respect to prejudice.”
But where the defendant failed to object (and therefore forfeited the objection), the issue is reviewed under the “plain error” standard, and it is the defendant who bears the burden of persuasion. “In most cases, a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial.” Moreover, before a federal constitutional error can be viewed as harmless, a court must find that it is harmless beyond a reasonable doubt. Where the error is “not of constitutional dimension,” federal courts apply a lesser burden of proof, i.e., a conviction will be affirmed so long as the reviewing court concludes “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.”
There are scores of instances where courts have applied these principles. For example, where a trial court permitted a supervisor in a crime laboratory to testify — over the defendant’s objection — about the procedures that had been followed by a laboratory analyst who determined that a substance was cocaine, any error was held to be harmless beyond a reasonable doubt.
In such situations, “‘[w]hether an error is harmless beyond a reasonable doubt depends upon factors such as the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of corroborating or contradictory evidence and the overall strength of the prosecution’s case.’” In that case, “there was considerable evidence beyond the objectionable portions of [the supervisor’s] testimony indicating that the substance that [the defendant] distributed to [the police officer] was crack cocaine, a form of cocaine base.”
Conversely, where a trial court gave a jury instruction that “erroneously diluted” the mens rea requirement of a crime, the appellate court held that the error was not harmless. In that case, the evidence of the defendant’s guilt “was not overwhelming,” and “[v]iewing the record as a whole, [the court concluded] that there is too great a likelihood that the instructional error may have influenced the verdict.”
Some errors are so fundamental that they require reversal as a matter of law, without considering whether the error was harmless. Such “structural errors” render a criminal trial fundamentally unfair or cause the trial to be an unreliable vehicle for determining guilt or innocence. For example, a constitutionally deficient reasonable-doubt instruction is a “structural error” that is not subject to a “harmless error” analysis, but requires reversal of a conviction as a matter of law. On the other hand, if a trial court erroneously denies a defendant’s peremptory challenge to a juror — who then serves on the jury that convicts the defendant — the error is not “structural” and the conviction will be affirmed if the trial court’s error was harmless.
Civil cases are viewed differently and have different standards. “In criminal cases the Government seeks to deprive an individual of his liberty, thereby providing a good reason to require the Government to explain why an error should not upset the trial court’s determination.” In “the ordinary civil case,” however, that is not true. Consequently, in civil cases, the party who “‘seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.’”
Again, as is true for criminal cases, examples abound. “If a jury instruction is erroneous,” an appellate court in a civil case “will reverse the judgment unless the error is more probably than not harmless.” Where an instruction erroneously indicated that the defendant could be held individually liable even if it was not an individual tortfeasor, the error was not harmless “because the jury may have found liability on the improper ground.” On the other hand, where an instruction erroneously advised that a defendant bore the burden of persuasion on an issue where the burden actually fell on the plaintiff, the error was held to be harmless because the appellate court determined that the plaintiff had met that burden.
In another case, a defendant employer, in a sexual harassment and assault and battery case, argued that the trial court “erred in failing to instruct the jury that ‘sporadic incidents’ were insufficient to create a hostile work environment and that ‘mere epithets’ that generate ‘offensive feelings’ could not support a sexual harassment claim.” The appellate court held that any error in failing to give that instruction that was harmless because “the jury found [the co-defendant supervisor] guilty of assaulting and battering [the plaintiff employee], and the circumstances of the harassment egregious enough to merit punitive damages.”
Consequently, “any error in failing to further elaborate on the harassment instruction was surely harmless in light of these findings (e.g., the battery verdict establishes that the jury necessarily found more than ‘mere epithets’),” and the verdict as to liability was affirmed. In that same case, however, the damages award did not withstand scrutiny. “Because in closing argument plaintiff’s counsel improperly referred to the federal statutory ‘cap’ on non-economic damages that could be awarded, and because the jury’s damages award indicates that this improper reference substantially influenced the jury’s calculations,” the court reversed and remanded for a new trial on damages.
Therefore, as appellate counsel, you have to focus not only on the substantive law and the standard of review; you must also assess whether any error is prejudicial or whether it is merely harmless. In short, if you are representing an appellant, don’t assume that your job is over once you show that the trial court erred. Be prepared to show that your client was prejudiced and that the error was not harmless.
In other words, you need to persuade the appellate court that there was both a foul and harm. Similarly, when representing an appellee, don’t hesitate to argue that — even if the trial court erred — the error was harmless and the appellant does not deserve any relief. You want to elicit the following from the appellate court — “OK, maybe the trial court erred, but you’re not getting a reversal or a new trial for that.”
--By J. Bradford McCullough, Lerch Early & Brewer Chtd.
Bradford McCullough is a principal in the litigation group at Lerch Early in the firm's Bethesda, Md., office and chairs its appellate practice subgroup.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 28 U.S.C. § 2111.
 Fed.R.Crim.P. 52; see United States v. Olano, 507 U.S. 725 (1993).
 United States v. Olano, 507 U.S. at 734.
 Id. (citing United States v. Young, 470 U.S. 1, 17 n. 14 (1985)).
 Chapman v. California, 386 U.S. 18, 24 (1967).
 United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012); Kotteakos v. United States, 328 U.S. 750, 765 (1946); accord Fry v. Pliler, 551 U.S. 112 (2007); see United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
 United States v. Turner, ___ F.3d ____, 2013 WL 776802, *7 (March 4, 2013) (quoting United States v. Walker, 673 F.3d 649, 658 (7th Cir. 2012).
 Id. at *8.
 United States v. Sasso, 695 F.3d at 30.
 Id. at 31.
 Rivera v. Illinois, 556 U.S. 148, 160 (2009).
 Sullivan v. Louisiana, 508 U.S. 275 (1993).
 Rivera v. Illinois, 556 U.S. 148 (2009).
 Shinseki v. Sanders, 556 U.S. 396, 410 (2009).
 Id. at 411.
 Id. at 409 (citations omitted).
 Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996) (citation omitted).
 Id. at 295.
 Mockler v. Multnomah Cnty., 140 F.3d 808 (9th Cir. 1998).
 Sasaki v. Class, 92 F.3d 232, 242 (4th Cir. 1996).
 Id. (citation omitted).
 Id. at 234.
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