Jeremy Bentham and John Stuart Mill could serve as the twin instigators for the utilitarian tool that passes as harmless error. This clearing house device is not some venerable legal “doctrine,” but rather, a judicially contrived convenience to avoid the necessity of remedial re-trials. Appellate tribunals excuse trial lapses by de minimis-izing them. This utilitarian bypass should not be confused with the fundamental right to Justice that Aristotle described as “the highest of all virtues *** excellence in the fullest sense.” On the contrary, harmless error delivers “economy class” Justice.

A remarkable book, “NOISE: A Flaw in Human Judgment” is a collaborative study by a trio of eminent authors-professors, Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein (Little Brown & Co., 2021). Their findings broadly expose how judgments go awry because of benign mishaps, tactical misdirection, or both. As to the legal universe, the book pinpoints fault lines that skew along taken-for-granted norms: “Judgments that are expressed in such phrases [‘beyond a reasonable doubt’ or ‘clear and convincing evidence’] are inevitably noisy because they are interpreted differently by speakers and listeners. *** The judicial system is unacceptably noisy.” Harmless Error fits into their catalogue of arguable legal clichés.

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