harmless error in Kentucky

2022Jonathan does not claim the deed is in any way invalid.3 “Under the harmless error doctrine, if upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held non-prejudicial.” Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky. 2000), abrogated on other grounds by Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) (citation omitted).

2021Ray’s testimony qualified as error, however, it would be subject to the harmless error analysis under RCr4 9.24, which states we “must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” In Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009), it was noted that a non-constitutional error is harmless “if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error.” (citing Kotteakos v. United States, 328 U.S. 750 , 66 S. Ct. 1239 , 90 L.

2024In Staples v. Commonwealth, we explained this analysis as follows: 14 Harmless error analysis applied to a constitutional error, such as the Confrontation Clause violation addressed in Crawford, involves considering the improper evidence in the context of the entire trial and asking whether there is a “reasonable possibility that the evidence complained of might have contributed to the conviction.” Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky.1998) (quoting from Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)).

2024Staples v. Commonwealth, 454 S.W.3d 803, 826 (Ky. 2014). 8 “Harmless error analysis applied to a constitutional error . . . involves considering the improper evidence in the context of the entire trial and asking whether there is a ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’” Id. at 826-27 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998)).

2021Consequently, we conclude that the warning is a prerequisite, not an element, of giving a police officer false identifying information.2 Theft of identity and giving false identifying information to a police officer are so remarkably similar, at least under facts like those at hand, that the proper course for a trial court is to submit both charges to the jury, which then has the discretion to determine which (if either) best applies to the defendant’s conduct. “[T]he trial court’s failure to give a necessary lesser-included offense instruction cannot be deemed a harmless error.” Commonwealth

2021“Furthermore, the trial court’s failure to give a necessary lesser- included offense instruction cannot be deemed a harmless error.” Commonwealth v. Swift, 237 S.W.3d 193, 196 (Ky. 2007).

2022Jonathan does not claim the deed is in any way invalid.3 “Under the harmless error doctrine, if upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held non-prejudicial.” Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky. 2000), abrogated on other grounds by Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) (citation omitted).

2012The Commonwealth incorrectly describes the harmless error standard as whether "upon consideration of the whole case it ... appear[s] that there is a substantial possibility that the result would have been any different.” Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky.2000).

2007“Under the harmless error doctrine, if upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held nonprejudicial.” Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky.2000), citing Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky.1969).

2007“Under the harmless error doctrine, if upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held nonprejudicial.” Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky.2000), citing Abernathy v. Commonwealth, 439 S.W.2d 949, 952 (Ky.1969).

2024With respect to the dissent, the Supreme Court of the United States has set the standard for harmless error when a constitutional right is violated: “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman, 386 U.S. at 23 (quoting Fahy v. State of Connecticut, 375 U.S. 85, 86-87 (1963)).

2024With respect to the dissent, the Supreme Court of the United States has set the standard for harmless error when a constitutional right is violated: “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman, 386 U.S. at 23 (quoting Fahy v. State of Connecticut, 375 U.S. 85, 86-87 (1963)).

2025See Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007) (“Harmless error analysis is simply not appropriate where a substantial right is involved.”). “[T]he defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’ For the same reason, a structural error ‘def[ies] analysis by harmless error standards.’” Weaver v. Massachusetts [ 582 U.S. 286 ], 137 S.Ct. 1899, 1907-08 , 198 L.Ed.2d 420 (2017) (internal citations omitted).

2020Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007) (“Harmless error analysis is simply not appropriate where a substantial right is involved and is indeed logically best suited to the effect of evidence on a verdict, though some procedural errors may also be reviewed in this light.”) “[T]he defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’” Commonwealth v. Douglas, 553 S.W.3d 795, 799-800 (Ky. 2018).

2025Our jurisprudence has consistently held “the erroneous admission of cumulative evidence is a harmless error.” Torrence v. Commonwealth, 269 S.W.3d 842, 846 (Ky. 2008).

2024Torrence v. Commonwealth, 269 S.W.3d 842, 846 (Ky. 2008) (“the erroneous admission of cumulative evidence is a harmless error”).

2024Under the harmless error rule and pursuant to RCr 9.24, we will not reverse a conviction based on a preserved error “if we can say with fair assurance that the judgment was not substantially swayed by the error.” Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010).

2021It is rather, even so, whether the error itself 21 Kentucky Rules of Criminal Procedure. 22 Ordway, 391 S.W.3d 762, 774 (Ky. 2013). 23 Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010). 10 had substantial influence.

2023He further acknowledges that Confrontation Clause errors are generally subject to a harmless error standard of review if the court is satisfied that the error was “harmless beyond a reasonable doubt.” Heard v. Commonwealth, 217 S.W.3d 240, 244 (Ky. 2007).

2011See Chapman v. California, 386 U.S. 18, 24 (1967); Heard v. Commonwealth, 217 S.W.3d 240, 244 (Ky. 2007) (detailing the harmless error standard for examining constitutional errors).

2021In United States v. Gonzalez-Lopez, the United States Supreme Court held that the denial of a defendant’s right to a public trial was a structural error.9 Structural errors are those affecting the entire framework of the trial and necessarily render the trial fundamentally unfair.10 These errors are not considered under the harmless-error rule but instead require automatic reversal.11 In reviewing whether a trial court denied a defendant’s right to a public trial, we apply a presumption of prejudice if such a denial is found to have occurred.12 United States v. Gonzalez-Lopez, 547 U.S. 140 , 1

2021In United States v. Gonzalez-Lopez, the United States Supreme Court held that the denial of a defendant’s right to a public trial was a structural error.9 Structural errors are those affecting the entire framework of the trial and necessarily render the trial fundamentally unfair.10 These errors are not considered under the harmless-error rule but instead require automatic reversal.11 In reviewing whether a trial court denied a defendant’s right to a public trial, we apply a presumption of prejudice if such a denial is found to have occurred.12 United States v. Gonzalez-Lopez, 547 U.S. 140 , 1

2021See Crossland v. Commonwealth, 291 S.W.3d 223, 231 (Ky. 2009) (“Errors of constitutional import—the most fundamental and serious type of errors—are generally analyzed under a harmless error standard.”).

2015See Crossland v. Commonwealth, 291 S.W.3d 223, 231 (Ky.2009) (“Errors of constitutional import — the most fundamental and serious type of errors — are generally analyzed under a harmless error standard.”) The harmless error standard of review of constitutional errors is whether the errors were harmless beyond a reasonable doubt.

2024In Staples v. Commonwealth, we explained this analysis as follows: 14 Harmless error analysis applied to a constitutional error, such as the Confrontation Clause violation addressed in Crawford, involves considering the improper evidence in the context of the entire trial and asking whether there is a “reasonable possibility that the evidence complained of might have contributed to the conviction.” Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky.1998) (quoting from Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)).

2024In Staples v. Commonwealth, we explained this analysis as follows: 14 Harmless error analysis applied to a constitutional error, such as the Confrontation Clause violation addressed in Crawford, involves considering the improper evidence in the context of the entire trial and asking whether there is a “reasonable possibility that the evidence complained of might have contributed to the conviction.” Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky.1998) (quoting from Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)).

2004A great weight of authority has held this type of error to be a “trial error,” which may be “quantitatively assessed in the context of other evidence presented,” Fulminante, 499 U.S. at 307-308 , 111 S.Ct. at 1264 , and thus susceptible to a harmless error analysis. 2 See, e.g., Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991); Ortega v. O’Leary, 843 F.2d 258 (7th Cir.1988); Wright v. Estelle, 549 F.2d 971 (5th Cir.1977); People v. Johnson, 62 Cal.App.4th 608 , 72 Cal.Rptr.2d 805 (1998); State v. Silva, 78 Hawai’i 115, 890 P.2d 702 (App.1995) (overruled on other grounds, Tachibana v. State, 79 H

2004A great weight of authority has held this type of error to be a “trial error,” which may be “quantitatively assessed in the context of other evidence presented,” Fulminante, 499 U.S. at 307-308 , 111 S.Ct. at 1264 , and thus susceptible to a harmless error analysis. 2 See, e.g., Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991); Ortega v. O’Leary, 843 F.2d 258 (7th Cir.1988); Wright v. Estelle, 549 F.2d 971 (5th Cir.1977); People v. Johnson, 62 Cal.App.4th 608 , 72 Cal.Rptr.2d 805 (1998); State v. Silva, 78 Hawai’i 115, 890 P.2d 702 (App.1995) (overruled on other grounds, Tachibana v. State, 79 H

2024Staples v. Commonwealth, 454 S.W.3d 803, 826 (Ky. 2014). 8 “Harmless error analysis applied to a constitutional error . . . involves considering the improper evidence in the context of the entire trial and asking whether there is a ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’” Id. at 826-27 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998)).

2024Staples v. Commonwealth, 454 S.W.3d 803, 826 (Ky. 2014). 8 “Harmless error analysis applied to a constitutional error . . . involves considering the improper evidence in the context of the entire trial and asking whether there is a ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’” Id. at 826-27 (quoting Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998)).

2022Since “the erroneous admission of cumulative evidence is a harmless error,”38 admission of Lt. 36 See Ordway v. Commonwealth, 391 S.W.3d 762 , 776–77 (Ky. 2013). 37 See id. 38 Torrence v. Commonwealth, 269 S.W.3d 842, 846 (Ky. 2008); see also Wells v. Commonwealth, 206 S.W.3d 332 , 335–36 (Ky. 2006) (Minton, J., concurring, joined by three other justices, stating that the erroneous admission of cumulative evidence is harmless error) (citing Meadows v. Commonwealth, 178 S.W.3d 527, 538 (Ky. App. 2005); Combs v. Commonwealth, 965 S.W.2d 161, 165 (Ky. 1998)). 22 Davis’s testimony that Lincoln was

2022Since “the erroneous admission of cumulative evidence is a harmless error,”38 admission of Lt. 36 See Ordway v. Commonwealth, 391 S.W.3d 762 , 776–77 (Ky. 2013). 37 See id. 38 Torrence v. Commonwealth, 269 S.W.3d 842, 846 (Ky. 2008); see also Wells v. Commonwealth, 206 S.W.3d 332 , 335–36 (Ky. 2006) (Minton, J., concurring, joined by three other justices, stating that the erroneous admission of cumulative evidence is harmless error) (citing Meadows v. Commonwealth, 178 S.W.3d 527, 538 (Ky. App. 2005); Combs v. Commonwealth, 965 S.W.2d 161, 165 (Ky. 1998)). 22 Davis’s testimony that Lincoln was

2022We find there is no substantial possibility that the result would have been any different, thus any error in this case was nonprejudicial and harmless.” Brewer v. Commonwealth, 206 S.W.3d 313, 325 (Ky. 2006) (quotation marks and citation omitted).

2009See, e.a., Brewer v. Commonwealth, 206 S.W.3d 313, 324-25 (Ky. 2006) ; Taylor v. Commonwealth , 175 S.W.3d 68, 72 (Ky. 2005); Abernathy v. Commonwealth , 439 S.W.2d 949, 952 (Ky. 1969) .

2021In United States v. Gonzalez-Lopez, the United States Supreme Court held that the denial of a defendant’s right to a public trial was a structural error.9 Structural errors are those affecting the entire framework of the trial and necessarily render the trial fundamentally unfair.10 These errors are not considered under the harmless-error rule but instead require automatic reversal.11 In reviewing whether a trial court denied a defendant’s right to a public trial, we apply a presumption of prejudice if such a denial is found to have occurred.12 United States v. Gonzalez-Lopez, 547 U.S. 140 , 1

2017Such errors preclude application of the harmless error rule and warrant automatic reversal under that standard.” McCleery v. Commonwealth, 410 S.W.3d 597, 604 (Ky. 2013) (citing Neder v. United States, 527 U.S. 1, 8-9, 119 (S.Ct. 1827, 144 L.Ed.2d 35 1999 )).

2021Because Luttrell’s statements bolstered the Commonwealth’s case against Appellant – even if only slightly – and as prejudice is presumed in matters of jury impartiality and is not subject to a harmless error analysis, Douglas, 553 S.W.3d at 799 , we conclude that trial court erred in denying Appellant’s motion to strike the jury pool.

2021In United States v. Gonzalez-Lopez, the United States Supreme Court held that the denial of a defendant’s right to a public trial was a structural error.9 Structural errors are those affecting the entire framework of the trial and necessarily render the trial fundamentally unfair.10 These errors are not considered under the harmless-error rule but instead require automatic reversal.11 In reviewing whether a trial court denied a defendant’s right to a public trial, we apply a presumption of prejudice if such a denial is found to have occurred.12 United States v. Gonzalez-Lopez, 547 U.S. 140 , 1

2024However, when the error is unpreserved, “[a] party claiming palpable error must show a probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Peters, 345 S.W.3d at 843 (citing Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)).

2023Harmless error, on the other hand, presupposes preservation . . . .” Id. 3 In relevant part RCr 10.26 provides that “[a] palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” -5- as noted above.

2021“Refusal to allow such an instruction, when supported by the evidence presented, constitutes reversible error.” Webb, 904 S.W.2d at 229 .

2020See Oakes v. Commonwealth, 320 S.W.3d 50, 58 (Ky. 2010) (explaining that “[t]he failure to grant a request for a lesser-included offense instruction is reversible error”); Commonwealth v. Swift, 237 S.W.3d 193, 196 (Ky. 2007) (explaining that “the trial court’s failure to give a necessary lesser-included offense instruction cannot be deemed a harmless error” (citing Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995).

2016Dickerson, 485 S.W.3d at 327 -28 (citing Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967); Taylor v. Commonwealth, 175 S.W.3d 68 (Ky. 2005); and Staples v. Commonwealth, 454 S.W.3d 803 (Ky. 2014) in discussing the harmless error standard for constitutional errors).

2009See, e.a., Brewer v. Commonwealth, 206 S.W.3d 313, 324-25 (Ky. 2006) ; Taylor v. Commonwealth , 175 S.W.3d 68, 72 (Ky. 2005); Abernathy v. Commonwealth , 439 S.W.2d 949, 952 (Ky. 1969) .

2005“The relevant inquiry under the harmless error doctrine ‘is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’” Jarvis v. Commonwealth, 960 S.W.2d 466, 471 (Ky.1998) (emphasis added) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 , 84 S.Ct. 229, 230 , 11 L.Ed.2d 171 (1963)).

2005"The relevant inquiry under the harmless error doctrine `is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. '" Jarvis v. Commonwealth, 960 S.W.2d 466, 471 (Ky.1998) (emphasis added) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 , 84 S.Ct. 229, 230 , 11 L.Ed.2d 171 (1963)).

2025See Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007) (“Harmless error analysis is simply not appropriate where a substantial right is involved.”). “[T]he defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’ For the same reason, a structural error ‘def[ies] analysis by harmless error standards.’” Weaver v. Massachusetts [ 582 U.S. 286 ], 137 S.Ct. 1899, 1907-08 , 198 L.Ed.2d 420 (2017) (internal citations omitted).

2025See Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007) (“Harmless error analysis is simply not appropriate where a substantial right is involved.”). “[T]he defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’ For the same reason, a structural error ‘def[ies] analysis by harmless error standards.’” Weaver v. Massachusetts [ 582 U.S. 286 ], 137 S.Ct. 1899, 1907-08 , 198 L.Ed.2d 420 (2017) (internal citations omitted).

2025Finally, in Wells v. Commonwealth, then-Justice Minton held “the introduction of the DNA report, though improper, was a harmless error” because it was cumulative. 206 S.W.3d 332, 335-36 (Ky. 2006) (Minton, J., concurring). 5 Consequently, even assuming error, we find it harmless as J.T. testified in person to the substance of her abuse and identified Dodson as its perpetrator; and Dodson introduced the forensic 5 Justice Minton was joined by three other justices in this opinion, making his concurrence an authoritative statement of law.

2022Since “the erroneous admission of cumulative evidence is a harmless error,”38 admission of Lt. 36 See Ordway v. Commonwealth, 391 S.W.3d 762 , 776–77 (Ky. 2013). 37 See id. 38 Torrence v. Commonwealth, 269 S.W.3d 842, 846 (Ky. 2008); see also Wells v. Commonwealth, 206 S.W.3d 332 , 335–36 (Ky. 2006) (Minton, J., concurring, joined by three other justices, stating that the erroneous admission of cumulative evidence is harmless error) (citing Meadows v. Commonwealth, 178 S.W.3d 527, 538 (Ky. App. 2005); Combs v. Commonwealth, 965 S.W.2d 161, 165 (Ky. 1998)). 22 Davis’s testimony that Lincoln was

2023The “denial of a defendant’s right to testify on his or her own behalf is a constitutional ‘trial-type’ error that is amenable -4- to the harmless error analysis . . . .” Quarels v. Commonwealth, 142 S.W.3d 73, 82 (Ky. 2004).

2011This approach is consistent with this Court's treatment of the deprivation of one's right to testify in Quarels v. Commonwealth, 142 S.W.3d 73 (Ky.2004). "[D]enial of a defendant's right to testify on his or her own behalf is a constitutional `trial-type' error that is amenable to the harmless error analysis espoused in Chapman." Id. at 82 .

2007Greene v. Commonwealth, 197 S.W.3d 76, 83 (Ky.2006) (citing Coy v. Iowa, 487 U.S. 1012, 1021-22 , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988)).

2007Greene v. Commonwealth, 197 S.W.3d 76, 83 (Ky.2006) (citing Coy v. Iowa, 487 U.S. 1012, 1021-22 , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988)).