constitutional harmless error in Colorado

2026See Hagos v. People, 2012 CO 63, ¶ 12 (explaining that “[r]eversal is more difficult to obtain under [the nonconstitutional harmless error] standard than under the constitutional harmless error standard”). ¶ 34 Under the nonconstitutional harmless error standard, we must reverse if “the error affects the substantial rights of the parties.” Id. (citing Crim.

2026See Hagos v. People, 2012 CO 63, ¶ 12 (explaining that “[r]eversal is more difficult to obtain under [the nonconstitutional harmless error] standard than under the constitutional harmless error standard”). ¶ 34 Under the nonconstitutional harmless error standard, we must reverse if “the error affects the substantial rights of the parties.” Id. (citing Crim.

2024We still must apply the constitutional harmless error standard to determine whether the trial court 's error was "harmless beyond a reasonable doubt." Hagos , ¶ 11 , 288 P.3d at 119 ( quoting Chapman , 386 U.S. at 24 ) .

2024We still must apply the constitutional harmless error standard to determine whether the trial court's error was "harmless beyond a reasonable doubt." Hagos , ¶ 11, 288 P.3d at 119 (quoting Chapman , 386 U.S. at 24).

2014The constitutional harmless error test "is not whether, in a trial, that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id. at 200-01 .

2013"The constitutional harmless error test 'is not whether, in a trial, that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' " Bernal v. People, 44 P.3d 184 , 200-01 (Colo.2002) (quoting Blecha v. People, 962 P.2d 931 , 942 (Colo.1998) ). ¶ 10 A defendant is constitutionally protected against self-incrimination and has the right to remain silent.

2026Dolan contends that the constitutional harmless error standard applies because the trial court “deprived [him] of any meaningful opportunity to present a complete defense.” People v. Osorio-Bahena, 2013 COA 55, ¶ 17 (quoting Krutsinger v. People, 219 P.3d 1054, 1061 (Colo. 2009)).

2026In this case, we decide only the latter question. 23 obtain under [the harmless error standard] than under the constitutional harmless error standard because this standard requires that the error impair the reliability of the judgment of conviction to a greater degree than the constitutional harmless error standard requires.” (citing Krutsinger v. People, 219 P.3d 1054, 1058 (Colo. 2009)).

2013"The constitutional harmless error test 'is not whether, in a trial, that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' " Bernal v. People, 44 P.3d 184 , 200-01 (Colo.2002) (quoting Blecha v. People, 962 P.2d 931 , 942 (Colo.1998) ). ¶ 10 A defendant is constitutionally protected against self-incrimination and has the right to remain silent.

2012"The constitutional harmless error test 'is not whether, in a trial[ ] that occurred without error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' " Id. at 200-01 (quoting Blecha, 962 P.2d at 942 ). 2.

2015Cf. Key v. People, 865 P.2d 822, 825-26 (Colo.1994); see United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.1993) ("We review ... the legal question[ ] of ... whether the presen-tence interview was a critical stage of the proceedings de novo."). _T16 "In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard." People v. Fritts, 2014 COA 103 , ¶ 11, - P.3d - (citing Key, 865 P.2d at 826-27 ; People v. Moore, 251 P.3d 451, 454 (Colo.App.2010)). 5 117 "[Wle reverse if 'there is a reasonable possibili

2015Cf. Key v. People , 865 P.2d 822, 825-26 (Colo. 1994); see United States v. Washington , 11 F.3d 1510, 1517 (10th Cir. 1993) (“We review . . . the legal question of . . . whether the presentence interview was a critical stage of the proceedings de novo.”). ¶15 “In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard.” People v. Fritts , 2014 COA 103 , ¶11 (citing Key , 865 P.2d at 826-27 ; People v. Moore , 251 P.3d 451, 454 (Colo. App. 2010)). 5 ¶16 “[W]e reverse if ‘there is a reasonable possibility

2024Compare Griego v. People, 19 P.3d 1, 7 (Colo. 2001) (preserved allegation of instructional error regarding an element of an offense is an “error of constitutional magnitude” and is reviewed under the constitutional harmless error standard), with People v. Garcia, 28 P.3d 340, 344 (Colo. 2001) (preserved allegations of instructional error that are not errors of “constitutional dimension” are reviewed under the harmless error standard (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000))).

2022Otherwise, if we determine that the jury instructions were incorrect or misleading, we will review the trial court’s error under the constitutional harmless error standard as long as the objecting party properly preserved the issue, as Garcia did here.2 Griego, 19 P.3d at 8 ; see also Hagos v. People, 2012 CO 63, ¶ 11 , 288 P.3d 116, 119 .

2015Cf. Key v. People , 865 P.2d 822, 825-26 (Colo. 1994); see United States v. Washington , 11 F.3d 1510, 1517 (10th Cir. 1993) (“We review . . . the legal question of . . . whether the presentence interview was a critical stage of the proceedings de novo.”). ¶15 “In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard.” People v. Fritts , 2014 COA 103 , ¶11 (citing Key , 865 P.2d at 826-27 ; People v. Moore , 251 P.3d 451, 454 (Colo. App. 2010)). 5 ¶16 “[W]e reverse if ‘there is a reasonable possibility

2015Cf. Key v. People , 865 P.2d 822, 825-26 (Colo. 1994); see United States v. Washington , 11 F.3d 1510, 1517 (10th Cir. 1993) (“We review . . . the legal question of . . . whether the presentence interview was a critical stage of the proceedings de novo.”). ¶15 “In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard.” People v. Fritts , 2014 COA 103 , ¶11 (citing Key , 865 P.2d at 826-27 ; People v. Moore , 251 P.3d 451, 454 (Colo. App. 2010)). 5 ¶16 “[W]e reverse if ‘there is a reasonable possibility

2026Indeed, as the United States Supreme Court has 23 observed, “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973); see also Golob v. People, 180 P.3d 1006, 1013 (Colo. 2008) (“Because a criminal defendant has the right to call witnesses in [their] defense, abridgment of that right is subject to a constitutional harmless error analysis.”); Melendez, 102 P.3d at 319 (applying constitutional harmless error review to exclusion of defense witnesses’ testimony after he violated a sequestration order). ¶ 48

2025See Golob v. People, 180 P.3d 1006, 1013 (Colo. 2008) (“Because a criminal defendant has the right to call witnesses in his defense, abridgment of that right is 27 subject to a constitutional harmless error analysis.”).

2025See People In Int. of T.M.S., 2019 COA 136, ¶ 26 (recognizing that “[o]ur supreme court has not addressed whether the constitutional harmless error standard applies with respect to a parent’s constitutional rights in dependency or neglect proceedings, but nevertheless applying it and finding the juvenile court’s error harmless beyond a reasonable doubt) (first citing A.M. v. A.C., 2013 CO 16 , ¶ 16 n.10, then citing People v. Trujillo, 114 P.3d 27, 32 (Colo. App. 2004)). ¶ 27 Father’s treatment plan, as adopted at the dispositional hearing, required him to (1) cooperate with the Department, th

2024See A.M. v. A.C., 2013 CO 16 , ¶ 16 n.10. ¶7 We decline to adopt the constitutional harmless error standard of review in this case because mother has not explained why it should be applied to the jury instructions given in her case.

2025See People In Int. of T.M.S., 2019 COA 136, ¶ 26 (recognizing that “[o]ur supreme court has not addressed whether the constitutional harmless error standard applies with respect to a parent’s constitutional rights in dependency or neglect proceedings, but nevertheless applying it and finding the juvenile court’s error harmless beyond a reasonable doubt) (first citing A.M. v. A.C., 2013 CO 16 , ¶ 16 n.10, then citing People v. Trujillo, 114 P.3d 27, 32 (Colo. App. 2004)). ¶ 27 Father’s treatment plan, as adopted at the dispositional hearing, required him to (1) cooperate with the Department, th

2012See, e.g., People v. Moore, 251 P.3d 451, 454 (Colo.App.2010) ("[Ujnder the constitutional standard of harmless beyond a reasonable doubt, [reversal is required] where there is a reasonable possibility that the defendant could have been prejudiced."); People v. Orozco, 210 P.3d 472, 476 (Colo.App.2009) ("[Under the constitutional harmless error test,] 'if there is a reasonable possibility that the defendant could have been prejudiced, the error cannot be harmless beyond a reasonable doubt.' Conversely, an error 'is harmless beyond a reasonable doubt ""if there is no reasonable possibility that

2026And the law is clear in Colorado that we apply the constitutional harmless error standard only if the error “specifically and directly offend[s] a defendant’s constitutional rights.” Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010).

2024The constitutional harmless error standard applies to errors “that specifically and directly offend a defendant’s constitutional rights.” People v. Flockhart, 2013 CO 42, ¶ 20 , 304 P.3d 227, 233 (quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010)).

2005See, e.g., People v. Klausner, 74 P.3d 421 (Colo.App.2003); People v. Auman, 67 P.3d 741 (Colo.App.2002) ( cert. granted on other issues Mar. 24, 2003); People v. Jurado, 30 P.3d 769 (Colo.App.2001).

2005See Auman, 67 P.3d at 758 (recognizing split of authority regarding appropriate standard of review).

2026Indeed, as the United States Supreme Court has 23 observed, “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973); see also Golob v. People, 180 P.3d 1006, 1013 (Colo. 2008) (“Because a criminal defendant has the right to call witnesses in [their] defense, abridgment of that right is subject to a constitutional harmless error analysis.”); Melendez, 102 P.3d at 319 (applying constitutional harmless error review to exclusion of defense witnesses’ testimony after he violated a sequestration order). ¶ 48

2013See People v. Melendez, 102 P.3d 315, 322 (Colo.2004) (we do not require "talismanic language" to preserve particular arguments for appeal). .

2026See People in Interest of T.M.S., 2019 COA 136, ¶ 26 (recognizing that the Colorado Supreme Court has not addressed whether the constitutional harmless error standard applies with respect to a parent’s constitutional rights in dependency and neglect cases). 14 V.

2025See People In Int. of T.M.S., 2019 COA 136, ¶ 26 (recognizing that “[o]ur supreme court has not addressed whether the constitutional harmless error standard applies with respect to a parent’s constitutional rights in dependency or neglect proceedings, but nevertheless applying it and finding the juvenile court’s error harmless beyond a reasonable doubt) (first citing A.M. v. A.C., 2013 CO 16 , ¶ 16 n.10, then citing People v. Trujillo, 114 P.3d 27, 32 (Colo. App. 2004)). ¶ 27 Father’s treatment plan, as adopted at the dispositional hearing, required him to (1) cooperate with the Department, th

2024The constitutional harmless error standard applies to errors “that specifically and directly offend a defendant’s constitutional rights.” People v. Flockhart, 2013 CO 42, ¶ 20 , 304 P.3d 227, 233 (quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010)).

2024The constitutional harmless error standard applies to errors “that specifically and directly offend a defendant’s constitutional rights.” People v. Flockhart, 2013 CO 42, ¶ 20 , 304 P.3d 227, 233 (quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010)).

2015Cf. Key v. People, 865 P.2d 822, 825-26 (Colo.1994); see United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.1993) ("We review ... the legal question[ ] of ... whether the presen-tence interview was a critical stage of the proceedings de novo."). _T16 "In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard." People v. Fritts, 2014 COA 103 , ¶ 11, - P.3d - (citing Key, 865 P.2d at 826-27 ; People v. Moore, 251 P.3d 451, 454 (Colo.App.2010)). 5 117 "[Wle reverse if 'there is a reasonable possibili

2015Cf. Key v. People , 865 P.2d 822, 825-26 (Colo. 1994); see United States v. Washington , 11 F.3d 1510, 1517 (10th Cir. 1993) (“We review . . . the legal question of . . . whether the presentence interview was a critical stage of the proceedings de novo.”). ¶15 “In cases where there has not been a total deprivation of the right to counsel, Colorado courts have applied a constitutional harmless error standard.” People v. Fritts , 2014 COA 103 , ¶11 (citing Key , 865 P.2d at 826-27 ; People v. Moore , 251 P.3d 451, 454 (Colo. App. 2010)). 5 ¶16 “[W]e reverse if ‘there is a reasonable possibility

2012It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment."); id. at 26 , 87 S.Ct. 824 ("Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions."); see also Kimmelmamn v. Morrison, 477 U.S. 365 , 382 n. 7, 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) (noting

2012It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment."); id. at 26 , 87 S.Ct. 824 ("Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions."); see also Kimmelmamn v. Morrison, 477 U.S. 365 , 382 n. 7, 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) (noting

2016The first three types are " Blakely -compliant," while a prior conviction is " Blakely -exempt." See id. at 723 . ¶ 13 In Washington v. Recuenco , 548 U.S. 212 , 222, 126 S.Ct. 2546 , 165 L.Ed.2d 466 (2006), the Supreme Court applied the constitutional harmless error analysis of Neder v. United States , 527 U.S. 1 , 15, 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999), to a Blakely sentencing error.

2016The first three types are " Blakely -compliant," while a prior conviction is " Blakely -exempt." See id. at 723 . ¶ 13 In Washington v. Recuenco , 548 U.S. 212 , 222, 126 S.Ct. 2546 , 165 L.Ed.2d 466 (2006), the Supreme Court applied the constitutional harmless error analysis of Neder v. United States , 527 U.S. 1 , 15, 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999), to a Blakely sentencing error.

2026Raile v. People, 148 P.3d 126, 133 (Colo. 2006) (citing People v. Fry, 92 P.3d 970 (Colo. 2004)).4 Under this standard, the 4 Marentes contends — and the People concede — that he preserved this issue for appeal.

2015People v. Fry, 92 P.3d 970, 980 (Colo. 2004); People v. Phillips, 2012 COA 176, ¶ 93 , 315 P.3d 136 .

2026Raile v. People, 148 P.3d 126, 133 (Colo. 2006) (citing People v. Fry, 92 P.3d 970 (Colo. 2004)).4 Under this standard, the 4 Marentes contends — and the People concede — that he preserved this issue for appeal.

2013Id.

2025Relying on Deck v. Missouri, 544 U.S. 622, 635 (2005), Brehm argues that the constitutional harmless error standard applies.

2014If a defendant fails to meet that burden, then the constitutional harmless error standard announced in Deck v. Missouri, 544 U.S. 622 , 125 S.Ct. 2007 , 161 L.Ed.2d 953 (2005), does not apply. 15 We also affirm the court of appeals' ruling on Hoang's rights to a meaningful and a speedy appeal.

2025Hagos v. People, 2012 CO 63, ¶ 11 ; see People v. Phillips, 2012 COA 176, ¶ 93 (“Confrontation Clause violations are trial errors subject to constitutional harmless error review.”).

2015People v. Fry, 92 P.3d 970, 980 (Colo. 2004); People v. Phillips, 2012 COA 176, ¶ 93 , 315 P.3d 136 .

2022Hagos v. People , 2012 CO 63, ¶ 11 , 288 P.3d 116, 119 (noting the general rule); see also People v. Omwanda , 2014 COA 128, ¶ 31 , 338 P.3d 1145, 1150 (noting that the constitutional harmless error standard applies to the admission of evidence obtained through an unconstitutional search).

2022Hagos v. People , 2012 CO 63, ¶ 11 , 288 P.3d 116, 119 (noting the general rule); see also People v. Omwanda , 2014 COA 128, ¶ 31 , 338 P.3d 1145, 1150 (noting that the constitutional harmless error standard applies to the admission of evidence obtained through an unconstitutional search).

2015Key , 865 P.2d at 826 ; Luu , 841 P.2d at 274 .

2014See Luu v. People, 841 P.2d 271 , 274-75 (Colo. 1992).