Rules of Evidence, Harmless Error, and Facebook Posts

If you read criminal appeals you know that our appellate courts desperately want to help the State by upholding as many convictions as possible on appeal. They accomplish this in a few ways, one is by letting the State break rules and laws as often as possible without consequences. How does this look in practice? Our appellate courts embrace the idea of “harmless error”; that the State is making conviction omelettes it’s ok to break a few eggs along the way.

The Rules of Evidence are a great example. These are the rules that govern what kind of evidence can be used at trial. If the Defense objects at trial and the judge erroneously lets the evidence in anyway the idea is that you can file an appeal and have another court fix this mistake by granting a new fair trial. But this is Texas, and we have a conviction machine to protect, so on appeal the courts look for anyway to justify the fact that while the State may have broken the rules, that’s ok because we got the “right” result, which is that the Government got their conviction. The “finality of convictions” is a key phrase to look for in appellate opinions, it always accompanies injustice.

Let’s go to our case of the day.

Copeland vs State

What happened?

Copeland was convicted of injury to a child and sentenced to 50 years. The State needed to piss off the jury to help guarantee a conviction (emotional arguments work well in cases involving children) so the State introduced some old Facebook posts from the Defendant, because we all know that each and every Facebook post we’ve ever made truly reflects who we are and should be held against us forever.

From the opinion-

Copeland posted many mindlessly obscene Facebook status updates, which the State sought to admit, including one post on August 4, 2011, declaring, “[I] like kicking poor helpless things,” and another on September 6 stating, “God dam [sic] kids taking my candy I will f*** a kid up.” Copeland’s counsel lodged a relevance objection and argued that the probative value of the posts were substantially outweighed by unfair prejudice.

What do the posts have to do with the charge Copeland injured a child months later? Good question. You see we have rules of Evidence that are supposed to prevent the State from putting on a case that this Defendant is a jerk, so we should just convict him of whatever he is charged with (404). That is, evidence that the Defendant is of poor character is not admissible to prove specific conduct. Courts are supposed to weigh this evidence to see if the probative value isn’t outweighed by unfair prejudice to the Defendant (rule 403). That’s the idea, but this is Texas so you probably no where this is going. From the opinion-

While we find that the admission of the Facebook posts was erroneous, we deem the error
harmless. Error in the admission of evidence constitutes nonconstitutional error that is subject to
a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Under Rule 44.2(b), any nonconstitutional error
that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b); Barshaw v.
State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). “A substantial right is affected when the error
had a substantial and injurious effect or influence in determining the jury’s verdict.” King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A conviction should not be overturned for
such error if this Court, after examining the record as a whole, has fair assurance that the error
did not influence the jury, or had but a slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex.
Crim. App. 2002).

Harmless error is the name of the game in Texas. The signal to prosecutors is clear, go ahead and break the rules, YOLO, and the court of appeals has got your back.

I’ve always wondered how do appellate judges determine if evidence “did not influence a jury”? They don’t actually ask the jury, that’s not allowed. They speak with such certainty that the jury was not affected by this evidence, but they have no basis for this belief.  They don’t know how or why a jury made a decision, so why act like they know what the possibly can’t? Why not be honest and say “Holding- Granting a new fair trial would be too much trouble for the State, and since no one cares about criminal defendants in Texas we know this is a risk free move politically ergo conviction upheld.”

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