By Heather L. Scheuerman Ph.D., Elizabeth Griffiths Ph.D., and Ryan Brown
Appellate courts reflect one of the last lines of defense against what some may consider to be an overzealous or even unethical prosecutor. When prosecutors step out of the bounds of what is appropriate, appellate courts can review their conduct to determine whether defendants are deserving of relief.
In the state of New Jersey, Rule 1:2-5 dictates that the courts should ignore “[a]ny error or omission which does not prejudice a substantial right” but should acknowledge error “of such a nature as to have been clearly capable of producing an unjust result, even [when] such error was not brought to its attention by a party” (Weissbard, 2009). These two types of error relate respectively to harmless error and plain error and are enshrined in general standards that guide appellate review (Rule 2:10-2, see Weissbard, 2009; Wry & Hall, 2022).
Error is harmful (or in legal terms, ‘not harmless’) when the alleged error is brought to the attention of the trial judge and when “the error is ‘clearly capable of producing an unjust result’” (Wry & Hall, 2022, p. 22). Error that is not attended to by the trial judge can only result in relief for the defendant if it is recognized to have prejudiced the defendant’s trial. But how is prejudice determined?
Appellate courts in New Jersey have used a combination of different harmless error tests to establish whether prosecutorial error prejudiced a trial. In State v. Macon (1971), the court adhered to the U.S. Supreme Court’s Chapman test in which a conviction will stand if the error is “harmless beyond a reasonable doubt” (Chapman v. California, 1967) or, stated differently, it likely did not contribute to the verdict. This is known as the “contribution-to-conviction” test (Scheuerman et al., 2023).
In other cases, New Jersey courts have used the Harrington test (Harrington v. California, 1969) that “asks whether the untainted evidence was so overwhelming that conviction was inevitable,” otherwise known as the “overwhelming untainted evidence test” (Weissbard, 2009, 2023). At times, both tests appear to be used within the same opinion (see State v. Tillery, 2019), which fosters confusion and may lead to upholding a conviction that is clearly tainted by error (Weissbard, 2009).
In our research on prosecutorial misconduct that was alleged on appeal in New Jersey between 2010 and 2015, we are finding that the above standards for appellate review are overwhelmingly underwhelming in providing relief to defendants. If we consider just one aspect of a criminal trial in which prosecutorial misconduct occurs, summation for example, relief tends to be granted when a prosecutor’s summation exceeds “the bounds of legitimate advocacy” (State v. Paziora, 2010) and is “so egregious that it deprived the defendant of a fair trial” (State v. Frost, 1999). However, appellate courts must consider:
(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. (State v. Paziora, 2010)
This means that appellate courts will only provide relief to defendants with a lackluster defense if the prosecutor’s error is “plain.” Unfortunately, the standard of review for plain error “rests upon the questionable foundation of overwhelming untainted evidence” (Weissbard, 2009). This means that appellants whose convictions have been tainted by a prosecutor’s error that was not objected to at trial may be granted relief only if the inculpatory evidence amassed against them is lacking or rests on untenable foundations.
In our next blog, we will discuss how our research can shed light on the role that the defense plays in affecting the type of review in which appellate courts engage, and the type of relief they grant to defendants.
Elizabeth Griffiths is a professor at the School of Criminal Justice at Rutgers University, Heather L. Scheuerman is an associate professor in the Justice Studies Department at James Madison University, and Ryan Brown is a Ph.D. student at the School of Criminal Justice at Rutgers University.
References:
Scheuerman, H. L., Griffiths, E., & Medwed, D. S. (2023). Post-conviction review on trial: When do appellate courts correct for prosecutorial misconduct? Crime & Delinquency, 69(13-14), 2846-2873. https://doi.org/10.1177/00111287221084288
Weissbard, H. (2009). The harm in harmless error. New Jersey Law Journal, 195(9). https://www.law.com/njlawjournal/almID/1202428616406/
Weissbard, H. (2023). Harmless error: The harm continues. New Jersey Law Journal, 229(15). https://www.law.com/njlawjournal/2023/04/10/harmless-error-the-harm-continues/
Wry, E. T., & Oldenburg Hall, C. (2022). New Jersey standards for appellate review. https://www.njcourts.gov/sites/default/files/courts/appellatestandards.pdf
Cases Cited:
Chapman v. California, 386 U.S. 18 (1967)
Harrington v. California, 395 U.S. 250 (1969)
State v. Frost, 158 N.J. 76,727 A.2d 1 (1999)
State v. Macon, 57 N.J. 325 (1971)
State v. Tillery, 238 N.J. 293 (2019)
State v. Paziora, DOCKET NO. A-1396-08T41396-08T4 (2010)