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296.2 Standards Of Prejudice On Appeal

    296.2.1 The Basic Standards Of Prejudice

    296.2.1.1 Per Se Reversal Rule Applies To Structural Errors And Errors Which Preclude Meaningful Review
    296.2.1.2 Prejudice On Appeal: The Chapman Standard
    296.2.1.3 Prejudice On Appeal: Nonconstitutional Errors
    296.2.1.4 Standard Of Prejudice On Collateral Review In Federal Court (Federal Habeas Corpus)
    296.2.1.5 Precluding Defendant From Arguing Theory Of Case Is Structural Error
    296.2.1.6 Federal Harmless Error Statute

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APPELLATE PRACTICE NOTE: In Sullivan v. Louisiana (1993) 508 US 275, 278-82 [113 SCt 2078; 124 LEd2d 182], in an opinion by Justice Scalia, the court held that Cage error (erroneous instruction upon proof beyond a reasonable doubt) is a violation of the due process clause (5th and 14th Amendments) and the right to trial by jury (6th Amendment) and is reversible per se. The court's reasoning was as follows: Because it is the prosecution's burden to show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (Chapman v. California (1967) 386 US 18, 24 [87 SCt 824; 17 LEd2d 705]; see also Delaware v. Van Arsdall (1986) 475 US 673, 684 [106 SCt 1431; 89 LEd2d 674]), certain errors, "whose precise effects are unmeasurable but without which a criminal trial cannot reliably serve its function [Citation]" (Sullivan, 508 US at 281) are reversible per se.

    Thus, an instructional error which misdescribes the burden of proof, and "vitiates all the jury's findings," can never be shown to be harmless. The consequences of such an error "are necessarily unquantifiable and indeterminate" (Sullivan, 124 LEd2d at 191) and the prosecution can never meet its burden of proving that such an error is harmless. (See Arizona v. Fulminante (1991) 499 US 279, 309 [111 SCt 1246; 113 LEd2d 302] [per se reversal for "structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless error' standards"].)

    As opposed to a "structural error," a "trial error" can be "quantitatively assessed" in order to determine whether or not it was harmless. (Rice v. Wood (9th Cir. 1996) 77 F3d 1138, 1141.)

RESEARCH NOTES:

See Capital Punishment Handbook [1.16.1 a. Trial Error Vs. Structural Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: "Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 US 18, 24 [87 SCt 824; 17 LEd2d 705].) This applies to "ordinary trial errors" implicating the federal constitution.  (Arizona v. Fulminante (1991) 499 US 279, 289 [111 SCt 1246; 113 LEd2d 302]; see also Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.63 [Prejudicial Instructions] (Anderson, 4th ed. 1999) [test for state error is whether absent the error verdict there is a reasonable possibility the verdict would have been different]; U.S. v Fern (11th Cir. 1998) 155 F3d 1318, 1327 [harmless error review standard mirrors the plain error review standard regarding prejudice to substantial rights, except that the burden of persuasion shifts: the government must show the absence of prejudice to the defendant's substantial rights].)

See Capital Punishment Handbook [1.16.1 a. Trial Error Vs. Structural Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: The standard of prejudice on appeal for errors which do not implicate the federal constitution typically requires reversal unless there is no reasonable possibility that the error affected the verdict. (See e.g., U.S. v. Pierre (9th Cir. 2001) 254 F3d 872; see also People v. Watson (CA 1956) 46 C2d 818, 836 [294 P2d 243]; Wharton’s Criminal Procedure (West, 13th Ed. 1989) § 353, p. 138). In the realm of jury instructions, there often is confusion regarding the appropriate standard of prejudice ["A given error is harmless beyond a reasonable doubt when the prosecution demonstrates, beyond a reasonable doubt, that the [error] did not contribute to the defendant’s conviction. If such a showing is made, the error will be deemed harmless; otherwise, it will be deemed prejudicial." [Footnotes omitted.]].)

See Capital Punishment Handbook [1.16.1 a. Trial Error Vs. Structural Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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    See NCJIC 298.3 [Standard Of Prejudice On Federal Habeas].

    See also NCJIC 298.2 [Standard Of Review On Federal Habeas].

See also Capital Punishment Handbook [1.16.1 a. Trial Error Vs. Structural Error: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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    See NCJIC 250.9.1 [Precluding Defendant From Arguing Theory Of Case Is Structural Error].

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PRACTICE NOTE: The federal harmless error statute reads: "On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." (28 USC 2111.) Harmless error rules also are found in collections of federal rules: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." (Fed. R. Crim. P. 52(a); see also FRE 103(a); Fed. R. Civ. P. 61.)

    The harmless error statute was passed to curb reversals upon a showing of a "technical" error. In interpreting the statute, the Court included in this category most errors not violating explicit constitutional rights. (See Kotteakos v. United States, 328 U.S. 750 (1946).) For a non-constitutional error to be harmless, a reviewing court, after considering the entire record, need only find "with fair assurance" that the judgment "was not substantially swayed by the error." (Id. at 765.) Moreover, the defendant has the burden of proving that the error affected his substantial rights, resulting in prejudice. (Id. at 760.)

    "The standard of prejudice in such cases, however, still eludes exact definition." (See Harmless Error: Abettor of Courtroom Misconduct, 74 J. Crim. L. & Criminology 457, 462 (1983).) For example, in United States v. Frady, 102 S. Ct. 1584 (1982), the Supreme Court, noting that previous Supreme Court cases had given the term "prejudice" no "precise content," specifically left the word undefined. (Id. at 1595.)