clarifying that the phrase "reasonable possibility" has the same substantive meaning as the phrase "reasonable probability" used by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694 *699 (1984)
How later courts described this case
- clarifying that the phrase "reasonable possibility" has the same substantive meaning as the phrase "reasonable probability" used by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694 *699 (1984)
- concluding that the Court in Neder applies the harmless error test in the same manner, regardless of the nature of the error complained of
- embracing the federal harmless error rule employed in Neder v. United States, 527 U.S. 1 (1999)
- discussing Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)
Written by the judges who cited it.
The opinion
SHIRLEY S. ABRAHAMSON, CHIEF JUS *470 TICE
*469 ¶ 55. *470 (dissenting). The circuit court instructed the jury in the present case that it had taken judicial notice of the fact that Penn Park is a city park and explicitly "directed" the jury to accept that fact as true. That the area in question is a city park is a penalty-enhancing element of this drug offense.
¶ 56. The majority opinion concludes that the mandatory nature of the instruction on this element of the enhanced drug offense was constitutional error. I agree.
¶ 57. The majority opinion then concludes that the constitutional error was harmless error. I agree with the majority opinion that a harmless-error analysis may be applied to an instructional error of constitutional dimension. This court so held in State v. Kuntz, 160 Wis. 2d 722, 735 , 467 N.W.2d 531 (1991).
¶ 58. I disagree with the majority opinion, however, when it abandons Kuntz and adopts Neder v. United States, 527 U.S. 1 (1999), the U.S. Supreme Court's most recent twist and turn in this area of the law. I also disagree with the majority opinion when it views Neder as abandoning the Chapman 1 harmless-error test.
HH
¶ 59. I would not abandon Kuntz . In Kuntz , this court adopted the reasoning of Justice Antonin Scalia in his concurring opinion in Carella v. California, 491 U.S. 263 (1989): The harmless-error rule applies in limited circumstances when a trial court uses a mandatory-conclusive presumption regarding an element of a crime.
¶ 60. The present case does not fall within one of the limited circumstances specified by Kuntz and it does *471 not fall within Justice Scalia's concurrence in Carella . Nor does the Neder case fall within one of those limited exceptions in which Justice Scalia and Kuntz would apply the harmless-error rule.
¶ 61. Neder narrowly holds that an erroneous jury instruction that omitted an element of an offense is subject to a harmless-error analysis when evidence of the omitted element is overwhelming and uncontested. One commentator quipped that Neder has "elevated the 'no harm, no foul' policy over reasoned analysis" 2 and is "a bad call." 3
¶ 62. The majority opinion applies Neder to the present case in which, by contrast, the circuit court, over the objection of the defendant, instructed the jury that an element was satisfied by the court taking judicial notice of the element, even though no evidence regarding the element had been admitted and the circuit court did not state the basis for taking judicial notice.
¶ 63. Justice Scalia disagrees with the Court's expanded use of the harmless-error rule in Neder . Justice Scalia reasons that a court cannot direct a guilty verdict no matter how clear the defendant's culpability, because a directed verdict denies an accused the right to a trial by jury and presents a structural error that is not subject to harmless-error analysis. 4 Why then, Justice *472 Scalia asks, should "taking one of the elements of the crime away from the jury ... be treated differently from taking all of them away — since failure to prove one, no less than failure to prove all, utterly prevents conviction"? 5 For Justice Scalia, allowing an appellate court to decide guilt or innocence on an element of a crime allows "appellate courts to trample over the jury's function." 6
¶ 64. We are bound by the decisions of the U.S. Supreme Court in interpreting the U.S. Constitution. But we are not bound by the decisions of the U.S. Supreme Court in interpreting the Wisconsin Constitution.
¶ 65. Wisconsin jurisprudence supports interpreting the Wisconsin Constitution in accordance with the Kuntz decision. The drafters of the Wisconsin Constitution placed great importance on the right to a trial by jury. In Article I, Section 7, the Wisconsin Constitution guarantees an accused in a criminal action the right to a jury trial, stating in part that in "all criminal prosecutions the accused shall enjoy the right... to a speedy public trial by an impartial jury." 7
¶ 66. To determine guilt, the fact-finder must first decide each element of a crime. The right to a jury trial, *473 therefore, means the right to a jury determination on every element of the crime charged. Because the people reserved in the constitution the "function of determining criminal guilt to themselves, sitting as jurors," 8 then it is not within the power of the courts to cancel that reservation.
¶ 67. Justice Scalia's conclusion in his dissent in Neder , drawing upon Blackstone's admonition about making inroads on the powers of juries, should guide this court in interpreting the jury guarantee in the Wisconsin Constitution:
And as for the ingredient of pragmatism (if the defendant is unquestionably guilty, why go through the trouble of trying him again?), it suffices to quote Blackstone once again:
"[H] owe ver convenient [intrusions on the jury right] may appear at first, (as, doubtless, all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; *474 that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern." 4 Blackstone, Commentaries 350. See also Bollenbach v. United States, 326 U.S. 607, 615 (1946).
Formal requirements are often scorned when they stand in the way of expediency. This Court, however, has an obligation to take a longer view.
Neder, 527 U.S. at 39-40 .
II
¶ 68. I would not abandon the Chapman harmless-error test. A second issue raised in the majority opinion relates to how the federal constitutional harmless-error test should be stated. The harmless-error doctrine has inspired several decades of commentary, criticism, skepticism, and attempted clarification. 9 Just a year ago this court debated harmless error in *475 several cases. 10 Our cases and scholarly commentary reveal that the doctrine of harmless error is a work in progress. 11 Indeed there may be several harmless-error tests depending on the nature of the error. 12
¶ 69. The State did not argue the issue of harmless error in its brief in the present case. When the court raised the issue of harmless error at oral argument, the State explained that it was unsure how harmless error applied in the present case. The State asserted that the error in the present case might be viewed as harmless because the defendant did not challenge the status of the park at trial or on appeal. Nevertheless, the State acknowledged that the error could be viewed as significant because the wrong entity, the judge, had made the finding of fact. Neither party referred to the Neder case.
¶ 70. As I have written previously, 13 1 do not think it is prudent that this court apply or modify our *476 statement of the harmless-error doctrine without the benefit of briefing by both parties, oral argument on the issue, and an exploration of the federal and state cases and the historical development of the law. 14 The decision regarding harmless error is the court's, but a fundamental premise of our adversary system is that advocates will present useful information and arguments that a court might not uncover. 15
¶ 71. The majority opinion recognizes that the U.S. Supreme Court takes two different approaches to harmless error in Neder. See majority op. at ¶ 46. The first approach asks whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" and comes from Chapman v. California, 386 U.S. 18, 24 (1967). See Neder, 527 U.S. at 15, 17, 18, 19 ; majority op. at ¶ 44.
¶ 72. The second approach, which is set forth without citation in Neder , asks whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder, 527 U.S. at 18 ; majority op. at ¶ 46. The majority opinion then uses this second approach to assess harmless error. Majority op. at ¶ 47.
¶ 73. There is a different emphasis in the two approaches. The first inquires whether the constitutional error contributed to the conviction, while the second inquires whether the untainted evidence provides overwhelming support for the conviction. Professor LaFave analyzes the various U.S. Supreme Court cases discussing these two approaches and concludes *477 that "the Court has appeared to move back and forth between relying heavily upon the presence of proof of guilt in its harmless error analysis, and considering that proof as less central to the inquiry." 16
¶ 74. The "presence of proof of guilt analysis" embodied in the second approach has been criticized as usurping the fact-finding function that the Sixth Amendment entrusts to a jury, particularly when applying harmless-error review to conclusive mandatory presumptions. 17 Courts should refrain from "interposing themselves into the process as some sort of 'super-jury.' " 18
¶ 75. The majority and concurring opinions apparently prefer to ignore the Chapman approach entirely and adopt only the second approach. The opinions thus misstate the U.S. Supreme Court's harmless-error test and turn a blind eye to the fluid nature and nuances of the U.S. Supreme Court constitutional harmless-error case law.
¶ 76. For the reasons set forth, I dissent.
¶ 77. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
Chapman v. California, 386 U.S. 18, 24 (1967).
Linda A. Carter, The Sporting Approach to Harmless Error in Criminal Cases: The Supreme Court's "No Harm, No Foul" Debacle in Neder v. United States, 28 Am. J. Crim. L. 229 , 239 (2001).
Id.
Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia, J., concurring in part and dissenting in part). According to Justice Scalia, "[t]he very premise of structural-error review is that even convictions reflecting the 'right' result are reversed for the sake of protecting a basic right." Id. at 34 .
Id. at 33 .
Id. at 36 .
Justice Scalia concluded in Carella v. California, 491 U.S. 263 (1989), that the use of mandatory conclusive presumptions is impermissible because in addition to "overriding [the] presumption of innocence with which the law endows the accused," it "invade[s] [the] fact-finding function which in a criminal case the law assigns solely to the jury." Carella, 491 U.S. at 268 (Scalia, J., concurring in the judgment) (internal citations omitted).
Wis. Const, art. I, § 7.
*473 For a discussion of the history of this provision, see State v. Hansford, 219 Wis. 2d 226, 234-240 , 580 N.W.2d 171 (1998).
Debate regarding the guarantee of a jury trial, as opposed to a bench trial, can be found in a speech to the members of the 1847-48 Wisconsin constitutional convention by Charles H. Lakin, who stated in part: "By the proposed amendment, if adopted, will be distinctly drawn between the bench and the jury box.... I wish to reinstate the ancient trial by jury, assigning to it its original prerogative and opening a great gulf between it and the bench ... ." Journal of the Convention to Form a Constitution for the State of Wisconsin, 122 (1948). See also Hansford, 219 Wis. 2d at 235 n.12.
Neder, 527 U.S. at 32 (Scalia, J., concurring in part and dissenting in part). *475 Mattner, Confusion in the Court: Wisconsin's Harmless Error Rule in Criminal Appeals , 63 Marq. L. Rev. 643 (1980). For a discussion of reversible error and the review function, and a critique of Wisconsin case law, see Ruggero J. Aldisert, The Judicial Process: Readings, Materials and Cases 706 — 42 (1976).
See, e.g., Roger J. Traynor, The Riddle of Harmless Error (1970) (proposing several different variations of the harmless-error standard depending on the nature of the error); Harry T. Edwards, Madison Lecture: To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated, 70 N.Y.U. L. Rev. 1167 , 1199 (1995) (expressing skepticism that "in practical application we can ever solve the riddle of harmless error").
See also James Edward Wicht III, There Is No Such Thing as a Harmless Constitutional Error: Returning to a Rule of Automatic Reversal , 12 B.Y.U. Pub. L. 73 (1997); Gregory Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review, 82 Calif. L. Rev 1335 (1994); Vilija Bilaisis, Harmless Error: Abettor of Courtroom Misconduct, 74 J. Crim. L. & Criminology 457 (1983); Kent A. Tess-
See, e.g., In re Termination of Parental Rights to Jayton S., 2001 WI 110 , 246 Wis. 2d 1 , 629 N.W.2d 768 ; Nommensen v. American Continental Ins. Co., 2001 WI 112 , 246 Wis. 2d 132 , 629 N.W.2d 301 ; Martindale v. Ripp, 2001 WI 113 , 246 Wis. 2d 67 , 629 N.W.2d 698 .
See, e.g., 5 Wayne R. LaFave et al., Criminal Procedure § 27.6(b), at 938-39 (2d ed. 1999) ("Few areas of doctrinal development have been marked by greater twisting and turning than the development of standards for applying the harmless error rule.").
Jayton S., 246 Wis. 2d at 25 (Abrahamson, C.J., concurring).
Id. at 23-26.
See also State v. Grant, 139 Wis. 2d 45, 88 , 406 N.W.2d 744 (1987) (Abrahamson, C.J., concurring).
Adam A. Milani and Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245 (2002).
5 Wayne R. LaFave, Criminal Procedure § 27.6(e), at 958-59 (2d ed. 1999). See also State v. McCallum, 208 Wis. 2d 463, 489-90 , 561 N.W.2d 707 (1997) (Abrahamson, C.J., concurring).
John M.M. Greabe, Spelling Guilt Out of a Record? Harmless-Error Review of Conclusive Mandatory Presumptions and Elemental Misdescriptions, 74 B.U. L. Rev. 819 (1994).
Id.