America's Favorite Pastime Exposes a Necessary Evil in the Legal System<
Harmless Error in Baseball, and in Law

By MICHAEL C. DORF
Monday, Oct. 13, 2003

With the World Series just days away, most baseball fans have shifted their focus away from the controversial and game-deciding ruling by the umpires in Game 3 of the American League Divisional Playoff Series between the Boston Red Sox and the Oakland Athletics. Yet this ruling has long-term significance, and not just for sports fans.

The critical play called attention to a little-known rule of baseball that authorizes umpires to decide how far a runner would have advanced had he not been obstructed. On the basis of that rule, third base umpire Bill Welke declared A's shortstop Miguel Tejada "out" despite the fact that Red Sox third baseman Bill Mueller interfered with Tejada's ability to run the bases.

The notion that an umpire can decide what would have happened had a play gone differently struck many fans of the game as bizarre. And yet our legal system routinely employs the same concept--and does so in cases in which the stakes are substantially higher than who wins a baseball game.

In the law, the principle is called "harmless error," and it is at best a necessary evil that sits uncomfortably with the right to due process of law.

Major League Baseball Rule 7.06 and its Fateful Application

The Rules of Baseball forbid defensive players from standing in the way of offensive players who are legally running the basepaths. Although interference rarely occurs in baseball, during Game 3 of the Red Sox-A's series, it was called twice.

The first time was when the Red Sox were batting in the second inning. A's third baseman Eric Chavez got in the way of Red Sox runner Jason Varitek, as Varitek was being chased between third base and home plate. The umpire invoked Rule 7.06(a), which provides that when a defensive player obstructs a runner for the offensive team while the defense is attempting to make a play on that runner, the umpire will call the play dead and award the runner at least the next base.

No doubt A's shortstop Tejada, watching the second inning play from just a few feet away, inferred that when interference occurs, the offensive player is awarded the next base. Thus, four innings later, when Tejada saw the umpire signal interference as he rounded third base, he slowed to a jog, assuming that he, like Varitek, would be awarded home plate.

Tejada apparently did not realize that there are two different kinds of interference. Under Rule 7.06(b), if interference occurs away from the main action, the umpire will signal interference but play continues, and if the "obstructed runner advances beyond the base which, in the umpire's judgment, he would have been awarded because of being obstructed, he does so at his own peril and may be tagged out." That is what happened to Tejada. As he slowed and pointed back to the point of interference, Red Sox catcher Varitek tagged him out.

Umpire Welke later explained that if Tejada had continued to run full speed toward home, but had been tagged out in a close play, he, Welke, would have ruled Tejada safe, exercising the discretion vested in him by Rule 7.06(b), which expressly states that the umpire must make "a judgment call."

However, because Tejada stopped while the ball was live, Welke had no basis on which to exercise his discretion. Instead of scoring the go-ahead run for the A's, Tejada was out, and the game remained tied until the 11th inning, when pinch hitter Trot Nixon's home run won it for the Red Sox. Boston went on to win the next two games to take the series.

A's fans may complain that they "wuz robbed," but it appears that the real culprit was Tejada's ignorance of the distinction between Rules 7.06(a) and 7.06(b)--a distinction that was likely unknown to most baseball players prior to the fateful Game 3.

Was Baseball Rule 7.06 Applied Correctly?

At the conclusion of Game 3, television analyst and former New York Mets manager Bobby Valentine argued that Welke had misinterpreted Rule 7.06(b). He said that the rule does not authorize an umpire to determine how far a runner would have advanced absent interference. Valentine was plainly wrong about that, as even a casual reading of the rule reveals.

However, Valentine may have been right on the larger point. Rule 7.06(b) says that a runner is only in "peril" if he "advances beyond the base which, in the umpire's judgment, he would have been awarded because of being obstructed." Accordingly, Welke could have made a judgment that absent interference, Tejada would have made it home, and since a runner never can advance beyond home, Tejada would never have been in peril.

That's a plausible argument, but Welke's reading of the rule is at least equally plausible. Under Rule 7.06(b), play continued after Welke signaled interference, and Tejada should not have assumed that he would be awarded home plate as a matter of course.

What's Wrong With Rule 7.06? The Difficulty of Counterfactual Reasoning in Baseball

In any event, most of the outraged commentary--including by Valentine--focused on the rule itself, rather than its application to Tejada. There's no good reason, the critics argued, for vesting discretion in umpires to determine what would have happened absent interference, because in a game as unpredictable as baseball, to quote Yogi Berra, a play "ain't over 'til it's over." Accordingly, the critics suggest, baseball would be better served with a bright-line rule than a rule vesting discretion in the umpire.

There is considerable logic to this argument, and indeed, in some circumstances, the baseball rules do draw bright lines. For example, when a batter hits a ball that bounces fair in the outfield and then lands in the stands, the batter is awarded a ground rule double and other runners (if any) advance exactly two bases; the umpire does not try to figure out what would have happened if the field were larger.

Yet the idea of an official making a judgment as to what would have happened absent an infraction is hardly alien to the world of sports. In football, for example, no penalty will be assessed for pass interference if the pass is, in the official's judgment, clearly uncatchable, and few people think this rule wrong-headed or unfair.

So sports fans who are up in arms about baseball's Rule 7.06(b) cannot reasonably complain that an official can never make a judgment about what would have happened on a given play. Instead, their gripe must be that it is too difficult to know what would have happened to a runner on the basepaths.

The Law's Answer to Baseball's Rule 7.06(b): Harmless Error

Judges--the law's version of umpires--routinely make judgments about what would have happened absent a violation of some rule of law.

In a typical trial, a judge makes hundreds of rulings. Many of these rulings are judgment calls that cannot be reversed by an appellate court unless the trial judge makes an egregiously bad judgment.

However, in any remotely complex case, a trial judge will also be called upon to make dozens of rulings on questions of law. At the conclusion of the trial, the losing side is entitled to have these rulings reviewed on appeal. And because the law is unclear in many areas, appeals courts regularly find that the trial court judge made an error of law--not in the sense that the trial judge just goofed (although that sometimes happens), but in the sense that the appeals court chooses to resolve an ambiguity in the law differently from how the trial judge resolved it.

The following question then arises: Having found a legal error, must the appeals court throw out the judgment in the case and order a completely new trial? Given the high cost of trying cases, appellate courts try hard to avoid such a course of action. They say that some legal errors are harmless: If the trial judge had ruled properly, the case would have come out exactly the same way.

How can an appeals court know that an error was harmless? Sometimes it will be obvious. Suppose that a trial judge permits jailhouse snitch Ricky Rat to testify that Wally Witness told Ricky that Wally saw the defendant steal Vanessa Victim's purse, as charged. Ricky's testimony should have been excluded as hearsay, but the appeals court could find that its admission into evidence was harmless on the ground that (let us suppose) ten other eyewitnesses who were present at the scene of the crime testified that they too saw the defendant commit the act. The appeals court could conclude that Ricky's wrongly admitted testimony couldn't have made any difference because it added nothing to the other evidence.

Harmless Error in Constitutional Cases and Close Cases

But what if the trial court made an error about something fundamental, like a criminal defendant's constitutional rights? Does that type of error always require reversal and retrial? Or can it, too, sometimes be harmless?

The answer is clear. Even constitutional error can be harmless, the Supreme Court has said, if the prosecution demonstrates beyond a reasonable doubt that the error did not affect the outcome.

This principle was dramatically illustrated in the 1991 capital case of Arizona v. Fulminante, in which the Court ruled that even the admission of a coerced confession in violation of a defendant's Fifth Amendment rights can be harmless. The majority in that case found that the error was not harmless, but three Justices thought otherwise. There were two confessions admitted in the trial court, and only one of these was coerced. The majority thought that the jury might have evaluated the uncoerced confession in light of the coerced one, whereas the dissenters (on this point) thought that was a fanciful possibility.

As the disagreement in Fulminante illustrates, the judgment that a given error was harmless is not always obvious. That fact in turn illustrates a deeper problem in the law: Principles developed for easy cases tend to get applied to borderline cases over time.

It seems plain enough that some trial court errors are so trivial that it would be grossly wasteful to require a new trial to remedy them. Yet once the law recognizes the possibility of holding a trivial error harmless, it is a relatively small step to say that even substantial errors that have a trivial impact on the outcome should be held harmless.

From there, docket pressure takes over. If an appellate court can avoid the waste associated with a new trial by finding an error harmless, the court will be tempted to conclude that a great many errors are harmless.

No doubt, in such cases, the appellate judges do sincerely believe that a new trial would come out the same way. But the basic principle of due process holds that people are entitled to their day in court even when we know--or think we know--what the outcome will be.

When a court finds an error harmless, it says, in effect, that the losing party's right to his day in court was satisfied by the flawed trial he was given because, after all, even a flawless trial would have produced the same outcome. If this principle is necessary to avoid having to retry every case endlessly, it is at best a necessary evil.

As in baseball, so in the law, often a "do-over" is so impractical that we must rely on a dispassionate arbiter's assessment of what would have happened had everything gone right in the first instance. If that's a bitter pill to swallow, at least A's fans can console themselves in the knowledge that any sense of injustice they feel pales in comparison to the sense of injustice felt by the thousands of litigants who have been told over the years that their flawed trials were all they were entitled to.


Michael C. Dorf is Professor of Law at Columbia University.

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