Tests for Harm in Criminal Cases: A Fix for Blurred Lines
Posted: 20 Jun 2015
Date Written: 2015
Abstract
This article focuses on six tests that determine whether a defendant will receive relief for an identified flaw in the criminal process. These tests are critical to ensuring that a criminal accused receives a fair trial and to enforcing the rights guaranteed by the constitution. Currently, the tests are not well-differentiated and are often applied in a manner that does not adequately protect the defendant's interest in a fair trial. They are all defined in similar terms and applied in similar ways. As a result, the courts favor the prosecution in their review, making it difficult for the defendant to vindicate her rights. This Article argues that the courts should define the harm assessment tests with greater clarity and, further, should ensure that they are implemented in a manner that more effectively protects defendants’ right to a fair trial.
The article first sets out basic definitions of the six tests and then places them in relation to each other on a spectrum from prosecution-friendly to defense-friendly. The article goes on to demonstrate how courts fail to distinguish among the tests both in how they state the tests and in how they apply them. Finally, the article proposes a new approach to the definition and application of the tests. The proposed approach would shift attention away from meaningless distinctions in language and direct the courts to apply all the tests in a manner more protective of the defendant.
Keywords: Harm assessing, harmless error, Brady violations and materiality, ineffective assistance and prejudice
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