[EL] ELB News & Commentary 6/29/16

[Greabe, John]

I should add that application of the "beyond a reasonable doubt" harmless-error standard (from Chapman v CA) is required because a failure to instruct a jury properly on each element of the crime charged is constitutional error.  Non-constitutional error-e.g., an evidentiary ruling that was not correct but that does not implicate a constitutional guarantee-is evaluated under a more forgiving "substantial or injurious effect or influence" standard derived from Kotteakos v. US.  In anyone is interested in an argument that this distinction makes little sense and harmless-error review should be reformed, here is a draft of a paper making such an argument that I will be publishing in the fall:

https://works.bepress.com/john_greabe/19/

John Greabe
Professor of Law
UNH School of Law
(603) 513-5191 (office)
(603) 344-1933 (cell)
http://works.bepress.com/john_greabe/

From: John Greabe <john.greabe at law.unh.edu<mailto:john.greabe at law.unh.edu>>
Date: Wednesday, June 29, 2016 at 1:36 PM
To: Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at UCI.EDU<mailto:law-election at UCI.EDU>>
Subject: Re: [EL] ELB News & Commentary 6/29/16

The harmless-error standard does require the government to establish beyond a reasonable doubt that the verdict was unaffected by the error.  The Court made this clear in Neder v U.S., liked below.  In doing so, the Court rejected the argument that instructional error which precludes the jury from finding each element of the offense charged under a proper jury charge causes a structural defect that can never can be harmless.  Here is a link to Neder:

https://supreme.justia.com/cases/federal/us/527/1/case.html

John Greabe
Professor of Law
UNH School of Law
(603) 513-5191 (office)
(603) 344-1933 (cell)
http://works.bepress.com/john_greabe/

From: <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Mark Scarberry <mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>>
Date: Wednesday, June 29, 2016 at 1:13 PM
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at UCI.EDU<mailto:law-election at UCI.EDU>>
Subject: Re: [EL] ELB News & Commentary 6/29/16

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