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Updated: May 23

When judges pretend to be jurors.

Wilfredo Lopez was charged with two counts of attempting to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). United States v. Lopez, 4 F.4th 706 (9th Cir. 2021) The charges arose out of a series of email messages between Lopez and a U.S. Air Force Office of Special Investigations (OSI) agent posing as a 13 year old girl on Facebook. During a recorded interrogation by two OSI agents, Lopez admitted communicating with "Brit," who described herself as a 13 year old girl, but claimed he knew she was actually a law enforcement officer. Lopez also claimed he had continued to communicate with "Brit" after she had told him her age because he wanted to obtain a discharge from the military.

At trial, the government played over Lopez's objections selected portions of the interrogation video after removing any statements he made explaining why he believed "Brit" was actually a law enforcement officer and why he had continued to communicate with her. On appeal, the Ninth Circuit held that the district court had abused its discretion by allowing the government to play the edited version of the video because the result was to give the jury a misleading impression of Lopez's statements. Nevertheless, the appellate panel upheld Lopez's conviction on the grounds that, in light of other evidence produced at trial, it was unlikely the jury would have acquitted Lopez even without the error.

The Ninth Circuit reached that result by applying what is known as "harmless error" analysis. Harmless error is a doctrine developed by the courts to allow the outcome of a trial to stand even when significant errors were made. It is routinely applied in criminal appeals by both state and federal courts to avoid overturning a conviction when the trial court has committed error. The justification for the doctrine is two-fold. First, if the error did not affect the outcome of the trial, requiring a new trial would be a waste of judicial resources, since the result would be the same at any subsequent trial. Second, the accused does not have a right to an error free trial, only a fair trial. Errors that do not affect the ultimate outcome do not render an otherwise appropriately conducted trial "unfair."

In applying harmless error analysis, the United States Supreme Court has distinguished between errors of constitutional magnitude, such as the denial of the right to counsel, and ordinary errors, such as misapplication of the rules of evidence. Some constitutional errors are considered to be "structural" in that they impact the fundamental fairness of the proceedings. Structural errors always require a new trial. Other constitutional errors require a new trial unless it is shown beyond a reasonable doubt that the error did not affect the jury's verdict. Non-constitutional errors require reversal and a new trial only when it is more likely than not that the error had a material impact on the verdict. See, United States v. Bailey, 696 F.3d 794, 803 (9th Cir. 2012).

In Lopez, the Ninth Circuit held that the district court had violated the rule of completeness (Federal Rules of Evidence 106) by allowing the prosecution to use the edited version of the interrogation video at trial - a non-constitutional error. Applying the standard set forth in Bailey, the court concluded the error was harmless. The court pointed to evidence that in his communication with "Brit" Lopez had expressed fear of getting into trouble because of her age, had repeatedly solicited nude photographs from her, and had attempted to meet with her to engage in sexual acts. The court also noted Lopez had testified at trial that he knew "Brit" was really a law enforcement officer, but had continued to communicate with her in hopes of obtaining a discharge. He also testified that the portions of the video shown by the government were misleading. The court reasoned that, taking the evidence presented at trial as a whole, the jury was in substantially the same position to judge the credibility of Lopez's testimony as it would have been without the erroneous ruling by the district court.

The Lopez case demonstrates how harmless error analysis as applied in criminal cases undermines the right to trial by jury guaranteed by the Sixth Amendment. In order to find an error was harmless, the appellate court must place itself in the same position as the jury by weighing the evidence to determine whether the error would have affected the outcome. Doing so requires making judgments about the relative credibility of witnesses and or the weight to be given to particular evidence as was done in Lopez. But, the Constitution requires those task to be performed by a jury, not a panel of appellate judges. When an appellate court applies harmless error analysis in this way, it is substituting its evaluation of the evidence for that of the jury. The result is to deny the accused the right to have a jury decide whether the evidence proves guilt beyond a reasonable doubt.

Moreover, appellate courts are not in a position to perform an accurate assessment of how a particular error might have impacted a jury's decision. Generally, appellate courts are limited to a review of the written record, including transcripts of testimony presented at trial. Appellate judges do not have the opportunity to observe a witnesses demeanor, including facial expressions, body language, tone of voice, etc., that may have a significant impact on the jury's assessment of the witness's credibility. Appellate judges who are far removed the the jury room and the deliberation process are also are ill-equipped to evaluate what weight or significance jurors might have attributed to any documentary or physical evidence produced at trial.

In Lopez, the Ninth Circuit expressed confidence that the outcome was affected by the erroneous admission of the edited interrogation video while also acknowledging that Lopez's credibility was necessarily critical to the jury's decision. But, it is certainly possible that the jurors who actually heard and saw Lopez testify might have found him more credible than the Ninth Circuit gave him credit for. If so, knowing that he had claimed from the very beginning of the investigation that he believed "Brit" was a law enforcement officer would have at least removed any concern that his defense was a recent fabrication first presented at trial. That by itself might have swayed one or more jurors to conclude that the prosecution had not proved its case beyond a reasonable doubt. In addition, Lopez's testimony that the edited video was misleading was no substitute for allowing the jury to see the unedited version and judge for themselves just how misleading it actually was.

Regardless of whether one agrees with the Ninth Circuit's evaluation of the evidence in Lopez, it is not possible to reconcile its harmless error analysis with the constitutional right to trial by jury. Lopez had an absolute right under the Sixth Amendment to have his guilt or innocence determined by a jury. Unless the appellate court could confidently say beyond any doubt that the jury would have reached the same result even without the error, the failure to grant Lopez a new trial denied him that right.

It may be that the Constitution does not require a perfect trial free from all error. There may be errors that are so minor or technical that they cannot reasonably be said to result in the denial of a constitutional right or the right to a fair trial. But, calling any substantial error harmless should be the exception. Rules of evidence are intended to insure a fair trial. A fair trial is one in which the jury's decision is based on all relevant and admissible evidence. Thus, the erroneous exclusion of evidence favorable to the accused or the erroneous admission of evidence favorable to the prosecution results in a trial that is inherently unfair.

Treating all substantial errors as requiring reversal in a criminal case may seem too harsh a rule. Indeed, the desire to avoid wasting judicial resources on new trials where it appears the result is not likely to change is the primary justification for the harmless error doctrine. But, the desire to avoid unnecessary retrials must be weighed against the need to protect the right of the accused to both a fair trial and trial by jury. Reform of the harmless error doctrine may well lead to more reversals and new trials, at least initially. However, when trial court judges realize that errors of the kind that occurred in Lopez will likely result in reversal on appeal, they may be more inclined to err on the side of protecting the rights of the accused rather than giving an unfair advantage to the prosecution.


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