Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to non-constitutional trial errors until forty years ago, when the Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees - the right to jury trial being no exception. However, while a tradeoff between important process values and the Constitution's protection of individual rights is inherent in the harmless error rule, recent applications of appellate harmless error review to certain jury-related constitutional errors have exceeded the scope of the initial compromise. Highlighting the current trend of application of appellate harmless error review to jury verdicts based on fewer than all of the required elements of a charged offense, this Article maintains that the Supreme Court's willingness to sacrifice individual criminal defendants' jury trial and due process rights at the altar of efficiency and finality has subverted the constitutional function of the jury itself, and has undermined the jury's institutional role. The Article calls for the constitutional recognition of the jury's core institutional interests, and argues for the inclusion of certain jury-related constitutional errors in the category of those structural errors not susceptible to appellate harmless error review.
GW Paper Series
GWU Law School Public Law Research Paper No. 403; GWU Legal Studies Research Paper No. 403
Roger Fairfax, Harmless Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L. Rev. 2027 (2008).