Monday, February 3, 2020

On harmless and not so harmless error

This month's Under Submission column in the DJ by PJ Gilbert is Taking credit or blame for the future, which notes:
Judges are not always knowledgeable. This is not an indictment, but an acknowledgment that we decide cases involving a myriad of subjects, about which we know... nothing. Through motions and evidence, we acquire the knowledge it takes to correctly, we hope, apply the law. Judges are perpetual students. Attorneys, who write briefs, motions and arguments for them to read and to hear, are teachers. Whether admitted or not, everyone in our profession knows this. And the peculiar nature of this relationship is that the students, the judges, have all the power.

And in the latest installment of Moskovitz on appeal, Myrong and retired Justice William Stein write about Harmless Error -- "To get a reversal, you must also show that the judge's error was "prejudicial" -- not "harmless error." This rule stems from the California Constitution, which allows reversals only where "the error complained of has resulted in a miscarriage of justice." Cal. Const., art. VI, s. 13."