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A Contextual Approach To Harmless Error Review, Justin Murray
A Contextual Approach To Harmless Error Review, Justin Murray
Articles & Chapters
Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Articles & Chapters
This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …