ANALYSIS OF JUNE 22, 2010 CAV OPINION[Posted June 23, 2010] I’m away from the keyboard this week, but never let it be said that I don’t love my readers enough to keep them current on the caselaw. The Court of Appeals handed down one published opinion yesterday, a fairly unsurprising harmless-error analysis of a criminal conviction.
The evidence against the appellant in Harrison v. Commonwealth was, you’ll have to admit, very strong. He was convicted of rape, abduction with intent to defile, and object sexual penetration in a 2007 attack on a nine-year-old girl. Almost all aspects of the girl’s report were corroborated by witness statements or by medical evidence. But the girl seemed to vacillate on one small detail – whether Harrison had or had not licked one of her breasts during the attack.
The defense sought to introduce evidence of a prior inconsistent statement on that point, but the trial court excluded it. That’s really the only basis for this appeal, and the Court of Appeals decides that any error in exclusion of the evidence would be harmless as a matter of law, because the other evidence against Harrison is so overwhelming. The key to the decision is the fact that Harrison didn’t assert a constitutional challenge in the trial court to the exclusion of the evidence, making harmless-error analysis appropriate, and that analysis sinks his appeal.
The lesson here is one we’ve seen before, in the context of hearsay objections. A plain-vanilla objection on the grounds of hearsay isn’t enough to bring a Crawford challenge based on the Confrontation Clause. Similarly, objecting that excluded evidence is admissible, and even specifying the basis of its admissibility, isn’t enough to preserve an argument that its exclusion deprives a criminal defendant of a constitutional right.
This opinion also offers a useful reminder of the distinction between impeachment based on general credibility considerations and impeachment for bias. The rules for the two are different, and this short opinion gives us a helpful guide to the difference.