Document Type


Publication Date

Winter 2009


Marquette Law Review





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From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of criminal justice reform. Many contemporary scholars can attest to the richness and depth of the criminal law and procedure scholarship in the law journals in the first third of the twentieth century. In addition to research conducted by full-time law professors during this era, judges and practicing members of the bar were frequent authors of legal scholarship on various problems vexing the criminal justice system.

These judges, lawyers, and law professors often gathered to discuss various topics in criminal law. These discussions and collaborations ultimately produced concrete reform proposals, many of which would go on to be implemented in law and practice. This era of reform is a fascinating study in the effective advancement of the legal profession through the coordinated efforts of those who practice, study, apply, and interpret the law.

This Article focuses on one aspect of the early twentieth-century criminal justice reform movement-procedural reform in the criminal context. More specifically, it examines the movement to reform criminal appellate procedure in the early twentieth century. The centerpiece of this movement-and, arguably, one of the most significant objectives of the larger criminal procedure reform project-was the adoption of the harmless error rule.

Although there are nuanced and important differences between different formulations of the harmless error rule, the basic model in the criminal context provides that when an appellate court notices error at trial, it is not bound to reverse a conviction and grant a new trial unless that error had some bearing on the outcome. In other words, if the verdict would have been the same even had the error not occurred, the conviction can stand. This Article seeks to explore not the functional meaning of the rule, but the fascinating story of how and why it came into being.

Part II of the Article provides the historical context from which the movement for the harmless error rule sprang. Part III illuminates the personalities and institutions involved in the surprisingly coordinated effort to establish the harmless error rule in American criminal appellate procedure. In Part IV, the Article explores the rhetoric and tactics employed by the reformers in their campaign to change the landscape of criminal appellate review and to capture the hearts and minds of appellate judges and the profession as a whole. Part V sheds light on the reformers' final victory on the federal stage-the adoption of the harmless error doctrine by judicial rulemaking in the Federal Rules of Criminal Procedure. The Article concludes with thoughts about the importance of the harmless error rule campaign for the broader criminal procedure reform project of the early twentieth century, and how we might assess its enduring success.



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