CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 24, 2019

Murray on Prejudice-Based Rights in Criminal Procedure

Justin Murray has posted Prejudice-Based Rights in Criminal Procedure (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article critically examines a cluster of criminal procedure rules that I refer to as prejudice-based rights. I focus, in particular, on outcome-centric prejudice-based rights — rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right to obtain favorable evidence from the government under Brady v. Maryland, and the right to effective assistance of counsel. Since prejudice is an element of these rights, no constitutional violation occurs when the government suppresses Brady evidence, or defense counsel furnishes ineffective assistance, unless there is a reasonable probability that the outcome was prejudiced as a result.

Outcome-centric, right-restricting prejudice rules serve understandable functions: most notably, they enable courts to preserve the finality of criminal judgments by rationing appellate and habeas relief. To the extent this is their aim, however, such rules are profoundly overbroad.
For they apply not only in appellate and habeas proceedings, but also to earlier decisions — at the trial court level — about what rights mean and how to enforce them. When applied at the trial court level, outcome-centric prejudice rules cripple the efficacy of rights. For one thing, efforts to predict outcome-determinative prejudice ex ante usually amount to little more than guesswork, since relevant information is in short supply during the early stages of a prosecution. And in any event, procedural fairness is essential in every criminal case — not just when fair processes are needed to prevent unfair outcomes. Outcome-centric prejudice-based rights are at odds with that premise, because the entitlements they bestow vanish once a trial court, prosecutor, or police officer decides that the outcome is a foregone conclusion.

After fleshing out these concerns, I propose a two-pronged strategy for reforming Brady, effective assistance of counsel, and potentially other outcome-centric prejudice-based rights. First, courts should remove prejudice from the definition of these rights, treating it instead as a remedial question — one that would come into play when a convicted defendant seeks relief from an appellate or habeas court, but generally not in other settings. Second, courts should dismantle the outcome-centric conception of prejudice embedded in these doctrines, and replace it with a nonoutcome-centric framework that I call contextual harmless error review. These reforms would greatly improve the fairness of the criminal process, and would do so without unduly disturbing the finality of trial court judgments.

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