Standards of Appellate Review in State Versus Federal Courts - April 2006 - Criminal Law

Publication year2006
35 Colo.Law. 43
Colorado Lawyer

2006, April, Pg. 43. Standards of Appellate Review in State Versus Federal Courts - April 2006 - Criminal Law

The Colorado Lawyer
April 2006
Vol. 35, No. 4 [Page 43]

Criminal Law

Standards of Appellate Review in State Versus Federal Courts
by John D. Seidel

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 666-4064,; and Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

This month's article was written by John D. Seidel, Denver, an Assistant Attorney General in the criminal appeals unit - (303) 866-5785,

There are two primary standards of review applied to alleged errors in criminal cases - "harmless error" and "plain error." Colorado's harmless and plain error standards parallel their federal counterparts but each jurisdiction has applied them in markedly different ways.

Many attorneys must research criminal appellate cases at some point in their careers. Those who make a living at it know that most criminal appeals do not result in new trials or vacations of guilty pleas. In fact, even when an appellate court finds that the trial court committed error to which the defendant objected, a criminal conviction will not be reversed if the appellate court concludes that the error was "harmless." Also, under the separate doctrine of "plain error," it is even more difficult to win reversal for an unpreserved error. However, a few "structural errors" always require reversal, at least when preserved.

Although the federal harmless and plain error rules are identical to their state counterparts,(fn1) courts in each jurisdiction have at times applied them in markedly different ways. This article compares and contrasts how federal and Colorado state courts apply plain and harmless error rules.

Federal Harmless Error

F.R.Crim.P. 52(a) provides that "any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." The rule recognizes that:

given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not guarantee such a trial.(fn2)

The key to this rule is the phrase "affect substantial rights." The phrase was first codified in 1919 at 28 U.S.C. § 391, which provided that appellate courts should decide cases based on the entire record of the case "without regard to technical errors, defects, or exceptions" that do not "affect the substantial rights of the parties."(fn3) In Kotteakos v. United States,(fn4) the Supreme Court noted that the phrase "affect substantial rights" also had been incorporated in F.R.Crim.P. 52(a), which the Court characterized as a "restatement of existing law."(fn5) The Court then concluded that an error "affected the defendant's substantial rights" under § 391 and F.R.Crim.P. 52(a) if it has a "substantial and injurious effect or influence in determining the jury's verdict."(fn6)

Constitutional Errors

A caveat in Kotteakos was that this standard should apply "except perhaps where the departure is from a constitutional norm. . . ."(fn7) Thus, Kotteakos left open the possibility that constitutional errors are never harmless. Twenty years later, the Court eliminated that possibility in Chapman v. California.(fn8) There, a provision in the California Constitution permitted the prosecution to argue that the defendants' failure to testify raised an inference of guilt.(fn9) The prosecution so argued, and the trial court instructed the jury on that inference.(fn10) However, by the time the case reached the California Supreme Court, the U.S. Supreme Court had decided that a prosecutor's use of a defendant's failure to testify as evidence of guilt violated the Fifth Amendment.(fn11) Nevertheless, the California Supreme Court declined to reverse, concluding that the error had not prejudiced the defendants within the meaning of the state's harmless error provision, which permitted reversal only when the reviewing court concluded that an error "had resulted in a miscarriage of justice."(fn12) The U.S. Supreme Court granted certiorari to address whether a constitutional error could ever be harmless.(fn13)

The majority first noted that the federal harmless error statute discussed in Kotteakos directed courts to ignore errors that did not affect the substantial rights of the parties, and that all fifty states had enacted harmless error rules or statutes.(fn14) Those rules served the "very useful" purpose of preserving convictions involving "small errors or defects that have little, if any, likelihood of having changed the result of the trial."(fn15) Moreover, none of those rules distinguished between federal constitutional errors and other types of error.(fn16) Therefore, the majority concluded, "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless. . . ."(fn17) The Court then held that: (1) it is the prosecution's burden to establish harmlessness "beyond a reasonable doubt"; and (2) an error is harmless when it "did not contribute to the verdict."(fn18)

It is important to note that although F.R.Crim.P. 52(a) had been around for almost two decades before Chapman was decided, Chapman did not apply it, because that rule governs direct appeals from judgments of conviction in the federal system.(fn19) Chapman was a direct appeal from a state conviction in which the state court had applied its own harmless error rule. Therefore, Chapman's harmless error was based on the Court's authority and responsibility to protect federal rights:

With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights.(fn20)

However, because Chapman relied on the federal harmless error statute, which parallels the federal harmless error rule, federal courts today routinely cite Chapman as the standard for determining whether an error "affects substantial rights" within the meaning of F.R.Crim.P. 52(a).(fn21) Since Chapman, the Supreme Court has said that most constitutional errors can be harmless.(fn22)

Chapman does not say whether there had been an objection at trial,(fn23) and neither does the California Supreme Court's opinion. Further, the Chapman opinion does not explain the phrase "contribute to the verdict." Standing alone, the phrase is ambiguous. An error can "contribute to" a conviction in the sense that it actually affects - that is, alters - the outcome of the proceeding. However, an error also can "contribute to the conviction" if it merely supports, but does not change, the outcome.

For example, suppose a trial court erroneously admits a defendant's police confession to a robbery, but three disinterested witnesses who know the defendant saw him commit the robbery, two others heard him admit to it, and he was caught with the stolen jewelry. The confession "contributed to" the verdict in the sense that the jury probably considered it, but its admission could be harmless because, given the other evidence of guilt, there is little chance that it altered the verdict from acquittal to conviction.(fn24) Under this reading of "contribute to the conviction," an error that did not prejudice the outcome still could require reversal.

In Neder v. United States,(fn25) the Supreme Court resolved the questions that Chapman had left open. First, Neder held that harmless error asks: "Is it clear beyond a reasonable doubt that a rational jury would have [convicted] absent the error?"(fn26) This standard, it said, blocks setting aside convictions for small errors that have "little, if any, likelihood of having changed the result of the trial."(fn27)

Second, Neder held that the federal harmless error rule applies when the defendant makes a proper objection.(fn28) Generally, an objection triggers harmless error review only when it rests on the same grounds argued on appeal. If the theory on appeal differs from that of the objection, the defendant must establish that the error justifies reversal under the "plain error" rule.(fn29)

Nonconstitutional Errors

In United States v. Lane,(fn30) the Court determined that misjoinder of offenses was not constitutional error. The Court also held that under the federal harmless error rule, the misjoinder of offenses was harmless because it did not have a "substantial and injurious effect or influence" on the verdict - the standard of harmlessness described in Kotteakos.(fn31) Although all three opinions in Lane are complex,(fn32) the majority opinion suggests Kotteakos applies to all nonconstitutional errors. Later cases confirm this interpretation of Lane; they hold that the Kotteakos standard of harmlessness applies to all preserved, nonconstitutional errors in federal criminal trials.(fn33)

It might seem equally difficult for the prosecution to show that an error did not have a "substantial and injurious effect on a verdict" as it would be to show that the error did not contribute to - that is, alter - the outcome. However, the Chapman standard applicable to constitutional errors "is considerably more onerous [for the prosecution] than the standard for nonconstitutional errors adopted in [Kotteakos]."(fn34) The...

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