Prejudice Rules and Criminal Procedure Enforcement

Hello! As Howard mentioned, I’ll be contributing to the blog this month as a guest. Thanks to Howard and Richard (Re) for the opportunity.

By way of introduction, my research focuses mainly on constitutional remedies and other mechanisms for enforcing constitutional rights. As a former public defender, I’m especially interested in constitutional criminal procedure and the various regulatory systems it has produced to bring about compliance with its strictures. These regulatory systems have failed in many different domains of criminal procedure. But few have failed as spectacularly as those pertaining to prosecutors’ evidentiary disclosure obligations under Brady and the right to counsel, as recent work by Jason Kreag, Eve Primus, and others has shown. Through a series of posts over the course of the month, I will ask why these two enforcement regimes have fared so badly, how we can make them better, and what broader implications this analysis may have for constitutional law and theory.

In particular, I’d like to explore the possibility that the failure of these regimes stems in part from an anomalous legal premise that the Supreme Court has embraced in relation to Brady and the right to counsel but that courts have rejected in virtually every other area of criminal procedure. In its cases involving Brady and the right to counsel (more specifically, the right to effective assistance of counsel), the Supreme Court has held that no constitutional violation occurs unless the defendant proves that the alleged error prejudiced the defendant in the sense that it may have altered the outcome of the proceeding. Simply put, the Court has held that no harm means no foul—no matter how extensively the prosecutor suppressed exculpatory evidence or how egregiously defense counsel performed in representing the defendant—for these two rights. No other significant area of constitutional criminal procedure works this way. To be sure, appellate and postconviction courts generally can (and routinely do) consider prejudice when applying the harmless error doctrine to decide whether criminal procedure errors justify setting aside the defendant’s conviction or sentence. But the harmless error doctrine presupposes that an error occurred regardless of whether that error caused prejudice. By contrast, no prejudice means no error under the Supreme Court’s Brady and effective assistance precedents.

Is this a distinction without a difference? If the defendant is going to lose on appeal anyhow, due to her inability to show prejudice, does it really matter whether the court rejects the defendant’s claim on the theory that the lack of prejudice (1) means that no constitutional error occurred (as the Brady and effective assistance doctrines hold) or (2) disentitles the defendant to the remedy of reversal (as the harmless error doctrine holds)?

I think it matters a great deal, for reasons I’ll describe in future posts. I will also touch on some larger theoretical implications—regarding the nature of the right/remedy relationship, departmentalism, and other topics—that I hope will interest readers who do not ordinarily follow doctrinal debates in criminal procedure. Please share your initial thoughts in the comments section. And stay tuned!

(Note: this post was edited on 5/7/2018 to fix the URL for the last source cited.)