§ 24.4 Requirement of Prejudice and Standard of Proof

• Jurisdiction: Washington

24.4 REQUIREMENT OF PREJUDICE AND STANDARD OF PROOF

Petitioners' standard of proof varies according to whether they are raising constitutional claims, alleging nonconstitutional errors, or challenging other government actions. The applicable standards are reviewed in the following subsections.

(1) Constitutional errors

Personal restraint petitioners raising most constitutional claims bear the burden of showing that the constitutional error caused "actual prejudice." In re Cook,114 Wn.2d 802, 810-11, 792 P.2d 506 (1990), and cases cited therein. This standard implies two key issues discussed here: what "actual prejudice" means, and on what constitutional claims the petitioner is relieved from showing "actual prejudice."

"Actual prejudice" has not been defined in great detail, other than in such formulations as "proof that more likely than not the defendant's right to a fair trial was actually and substantially prejudiced." State v. Kitchen,110 Wn.2d 403, 413, 756 P.2d 105 (1988), overruled on other grounds by In re Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014). The "actual prejudice" standard is best understood as a burden-shifting device; it is a

shift [of] one element of the burden of proof onto the petitioner. On direct appeal, the burden is on the State to establish beyond a reasonable doubt that any error of constitutional dimensions is harmless. On collateral review, we shift the burden to the petitioner to establish that the error was not harmless; in other words, to establish that the error was prejudicial. In re Hagler,97 Wn.2d 818, 825-26, 650 P.2d 1103 (1982) (citations omitted) cert denied, 478 U.S. 1020 (1986). "Actual prejudice" is to be determined by considering "the totality of circumstances." In re Music,104 Wn.2d 189, 191, 704 P.2d 144 (1985).

The "actual prejudice" standard may be different from the standard used by federal courts. In a post-conviction proceeding, the standard for determining harmless error from a federal constitutional trial error is whether the violation "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson,507 U.S. 619, 622, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (quoting Kotteakos v. United States,328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)), reh'g denied, 508 U.S. 968 (1993). The Court in Brecht used the term "actual prejudice" to describe this standard, but the Kotteakos standard may well still differ significantly from Washington's version of "actual prejudice," especially on the matter of which party bears the burden. Id. at 647 (Stevens, J., concurring); see also id. at 640 (Kotteakos "places the burden on prosecutors to explain why [the] errors were harmless").

The U.S. and Washington Supreme Courts have recognized that certain constitutional claims require a specific showing of prejudice, whether raised on direct appeal or on collateral attack. For example, the government violates a defendant's right to due process if it withholds material, exculpatory evidence and there is a "reasonable probability" that the misconduct affected the result. See United States...