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FRCP Rule 52: Harmless and Plain Error:

  • (a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Are there any published case from any US jurisdiction where the court wrestles with this idea and applies FRCP 52 to a fact pattern where someone on a video call either lost connection or couldn't be heard?

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  • It's not quite clear what you're asking about. How would are you imagining a lost Internet connection having an effect on a trial? A witness appearing by Zoom, perhaps?
    – bdb484
    Commented Mar 9, 2022 at 21:14
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    There is a recent reported Colorado appellate court case on point, probably less than a year old. I'll try to find it. It involved a termination of parental rights case where the parent's connection to a virtual hearing was broken and this denied him a meaningful hearing.
    – ohwilleke
    Commented Mar 9, 2022 at 21:19

1 Answer 1

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One such case is People in interests of EB, 2022COA8 (Colo. App. 2022). The official syllabus of the case states:

In this dependency and neglect proceeding, father appeals the juvenile court judgment terminating his parent-child legal relationship with his child. Father contends that the juvenile court abused its discretion when it denied his request for a continuance after it learned that he was having technical difficulties participating in the termination hearing, which was being conducted via Webex videoconference due to the ongoing COVID-19 pandemic. A division of the court of appeals concludes that, under the facts and circumstances of this case, it was an abuse of discretion to deny the requested continuance. Accordingly, the division reverses the termination judgment and remands the case to the juvenile court for further proceedings.

The Colorado Rules of Civil Procedure applicable to the case are substantially identical to the parallel Federal Rules of Civil Procedure of the same number. Harmless error analysis is fairly similar in criminal cases and civil cases, although not quite identical. In theory, the standard in a criminal case to ignore harmless error is stronger than in a civil case. In practice, lots of seemingly significant matters in criminal cases are discounted as harmless error anyway.

The court doesn't explicitly make a harmless error or lack thereof determination, but its analysis makes clear that the error was not harmless.

Issues related to a remote hearing are also discussed in People in Interest of R.J.B., 2021 COA 4 (Colo. App. 2021), which is cited in this case. The official syllabus to that case tangentially discusses the issue:

In this dependency and neglect proceeding, mother appeals the judgment terminating her parent-child legal relationship following a remote termination hearing via Webex. She claims that the court should have granted her a continuance so an in-person hearing could have been held, and the remote hearing didn’t afford her due process or equal protection of the law.

The division concludes that the court didn’t abuse its discretion in denying the continuance. The court’s need to conduct the termination hearing via Webex didn’t establish good cause to continue the hearing when a judge presiding over a hearing held via Webex can address any technical difficulties with sound, video feed, or broadband issues as they arise; any delay in making an objection can be redressed by the court disregarding improperly admitted evidence; the court had extensively tested the virtual lobby and didn’t allow a sequestered witness to hear any of the proceeding; Webex, as a real-time videoconference platform in which all participants may view one another, allows the court and all counsel to observe a witness’s demeanor, determine if the witness is relying on documents or other information, and view admitted exhibits as well as other documents that may be used for impeachment; and the court ensured that an official record of the hearing was made in the same manner as during an in-person hearing.

The division also rejects mother’s assertions that the remote hearing procedure failed to afford her due process and equal protection of the law. The division concludes that the juvenile court ensured that mother was provided substantially similar and fundamentally fair procedures as would have been available at an in-person termination hearing. So conducting the termination hearing via Webex afforded mother due process. The division didn’t consider mother’s equal protection claim because it is merely a bald assertion without argument or development.

It is worth mentioning that many cases applying the harmless error standard don't expressly reference Federal Rule of Criminal Procedure 52. Not infrequently, cases don't even mention the buzzwords "harmless error", even though the case makes an analysis that implicitly addresses the issue.

Probably the best place to look for relevant case law would be under annotations to Federal Rule of Criminal Procedure 33 which governs motions for new trials.

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  • Thank you! How on earth were you able to find a case? I felt like I'd been searching forever and no combination of words through Google or Westlaw was getting me anywhere.
    – COOKIES
    Commented Mar 10, 2022 at 18:55
  • @COOKIES I read the advance sheets in Colorado twice a week (once for the Colorado Supreme Court and once for the Colorado Court of Appeals) and take note of the ones that are potentially relevant to my practice. I also read law blogs and not interesting cases there.
    – ohwilleke
    Commented Mar 10, 2022 at 21:18

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