When a hearsay statement is erroneously admitted in a criminal trial, what evidence should appellate courts consider – and under what standard – to determine if that error was harmless?
That was the thorny issue facing the justices of the U.S. Supreme Court on Wednesday as they took up the case of Vasquez v. U.S.The case involves Alexander Vasquez, who was tried and convicted in federal court for drug conspiracy.
During his trial, the defense presented evidence to show that Vasquez was not involved in planning the drug transaction that led to his arrest and the arrests of several alleged co-conspirators.
But, over Vasquez’s objection, the government introduced recordings of telephone calls between Vasquez and the wife of one of his alleged co-conspirators after the arrest. In those calls, Vasquez said his lawyer encouraged him to plead guilty and his lawyer said that if the defendants went to trial “everybody is going to lose.”
Vasquez appealed to the 7th Circuit, arguing that the recordings were hearsay and should not have been admitted. The court unanimously agreed that the admission of the recordings was erroneous, but split on the issue of whether the error was harmless.
The majority found that the error was harmless, applying a test that considered whether the prosecution’s case would have been significantly less persuasive if the evidence had been excluded. The court held that the fact that Vasquez fled the scene when police approached him before his arrest and other evidence was “overwhelming” enough that the recordings did not harm him.
But the dissenting judge found that the error was not harmless, applying a different test: whether it appears beyond a reasonable doubt that the error did not contribute to the verdict.
With a split among the circuits on the issue, the Supreme Court granted certiorari.
Is there a difference?
During oral arguments, Beau Brindley, a Chicago attorney who represented Vasquez at the trial level, argued that the 7th Circuit effectively substituted itself as a fact finder in place of the jury.
“It is impermissible for the reviewing court [to ask] whether some other jury, a reasonable jury that didn’t hear the error that this jury heard, would convict him,” Brindley said.
Justice Samuel Alito Jr. questioned the distinction between the defendant’s proffered standard and the government’s, reading two sentences to figure out how the effect would change: “First one: ‘Is there a fair possibility that this particular evidence caused the jury to convict?’ Second statement: ‘Is there a fair possibility that this jury would have convicted without the evidence?’
“Do you see a difference between those two?” Alito asked.
“The difference is one of them was going to focus on the entire record, which includes the error,” Brindley said. “The other is going to focus on the evidence in the record without the error, and that’s important.”
Chief Justice John Roberts Jr. questioned if the lower court’s analysis was as narrow as Vasquez argued, because the court itself stated that it was “looking at the evidence as a whole,” not without the erroneously admitted recording.
“They do say that,” Brindley said, but in their analysis “they don’t address the error at all.”
Looking into the jury’s thought process
Anthony Yang, assistant to the solicitor general, argued on behalf of the government that the standard for determining harmless error was clear: “Whether a rational jury would have found the defendant guilty absent the error.”
Justice Sonia Sotomayor wondered if it was that clear cut.
“Doesn’t the harmfulness of the error sort of vary with the strength of the government’s case?” she asked.
“Undoubtedly,” Yang said, noting that such a determination is left to the “reasoned judgment [of] the court of appeals.”
Yang said the government’s position was a far cry from Vasquez’s, which would require the court to “look at the thought process of this jury to decide whether the error might have had some influence” rather than looking to a reasonable jury.
Roberts pushed to see how far that standard could stretch.
“But let’s say you have a situation where [the] improperly admitted evidence has the defendant saying, ‘I’m guilty. I’m guilty,’” Roberts asked. “[Must we] look at all the complicated evidence and see if a jury would have convicted? Or can we, with a fair degree of confidence, say that the error is what led the jury to convict?”
“The former,” Yang said. Later he added a fuller explanation: “Even in a case where the jury [has] some very provocative evidence, … the court looks at the evidence as a whole and says [whether] a rational jury would have gotten to the same result and … would have convicted.”
A decision is expected later this term.