Genova Burns' Of Counsel Hon. Harvey Weissbard, J.A.D. (retired) recently penned an article for New Jersey Law Journal entitled "Harmless Error: The Harm Continues".
Judge Weissbard begins the article noting "Fourteen years ago, I authored an article in this Journal titled “The Harm in Harmless Error,” in which I decried the pernicious nature of that doctrine. In the article, I invited our courts to provide a “definitive methodology” to replace the sometimes rote, and often-muddled, opinions that proliferated on the topic. Since then nothing has been done and the doctrine continues to wreak its frequent havoc. That said, it’s time for another look."
"As with most inquiries of this nature, some historical perspective is helpful in illuminating the path forward. Common law “supposedly called for reversal for any error.” State v. Macon, 57 N.J. 325, 336 (1971). Indeed, it was to address the injustices resulting from the archaic formalism of a prior age, in which emphasis was placed on pleading rather than substance, resulting in cases being dismissed because the pleader used the “wrong writ,” that gave birth to the movement for reform in the early 20th century."
"The history makes clear that the court should reassess and clarify plain error and adjust it to fit with the correct, impact/contribution test for harmless error. In short, it all is quite a mess."
To access the full article with Judge Weissbard's historical analysis, please click here.
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