harmless error in Massachusetts

1997It is settled that “the harmless error standard of Chapman v. California, 386 U.S. 18 (1987), applies to jury instructions that violate the principles of [Sandstrom] and [Francis].” Rose v. Clarke, 478 U.S. 570, 572, 582 (1986).

1991In some instances, however, “prosecutorial comment on post-arrest silence, although unconstitutional, might constitute a harmless error under the standard of Chapman v. California, 386 U.S. 18 . . . (1967).” Commonwealth v. Mahdi, 388 Mass. 679, 696 (1983), quoting from Morgan v. Hall, 569 F.2d 1161, 1166 (1st Cir.), cert. denied, 437 U.S. 910 (1978).

2023See Yat Fung Ng, 489 Mass. at 253. 13We only review preserved constitutional errors under the harmless error standard, see Commonwealth v. Yasin, 483 Mass. 343 , 350 (2019), citing Commonwealth v. Tyree, 455 Mass. 676, 700-701 (2010), "unless the constitutional right infringed is 'so basic to a fair trial that [its] infraction can never be treated as harmless error'" (citation omitted), Commonwealth v. Vinnie, 428 Mass. 161, 163-164 (1998).

2018In order to meet the harmless error test, we must be satisfied "beyond a reasonable doubt that the tainted evidence did not have an effect on the [fact finder] and did not contribute to the [fact finder's findings]." Commonwealth v. Tyree , 455 Mass. 676 , 701, 919 N.E.2d 660 (2010).

2025See Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995) ("Where there is a substantial risk that the defendant was convicted of a crime for which he was not indicted by a grand jury, we cannot apply a harmless error standard"); Garcia, supra at 6 (defendant's rape of child conviction reversed where constructive amendment was one of substance).

2019See Commonwealth v. Mayotte , 475 Mass. 254 , 265-266, 56 N.E.3d 756 (2016) (vacating conviction where indictment charged one statutory theory of crime while testimony and jury instructions expanded indictment by introducing different theory); Commonwealth v. Barbosa , 421 Mass. 547 , 554, 658 N.E.2d 966 (1995) ("Where there is a substantial risk that the defendant was convicted of a crime for which he was not indicted by a *347 grand jury, we cannot apply a harmless error standard....

2023We admit to some difficulty in understanding Mahdi, a post-Miranda silence, first-degree murder case which purports to apply both the harmless error beyond a reasonable doubt standard and the substantial risk of a miscarriage of justice standard, see id. at 690, 696, 699 .

2014We consider the factors set forth in Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983), whether evidence of a defendant’s refusal was admitted over objection and we apply the harmless error standard, see Commonwealth v. Peixoto, 430 Mass. 654 , 657-661 & n.6 (2000), or whether refusal evidence is admitted without objection and we apply the unpreserved error standard under G.

2010See Commonwealth v. Marini, 375 Mass. 510, 520 (1978) (“[I]t would be hard to say that the [error] was without effect on the jury and did not contribute to the verdict”); Commonwealth v. Gilday, 382 Mass. 166, 178 (1980) (“We should set aside the conviction unless we are ‘sure that the error did not influence the jury, or had but very slight effect’ ”), quoting from United States v. Agurs, 427 U.S. 97, 112 (1976); Commonwealth v. Perrot, 407 Mass. 539, 549 (1990) (“The essential question is whether the error had, or might have had, an effect on the jury and whether the error contributed to or

2010See Commonwealth v. Perez, 411 Mass. 249 , 260 n.8 (1991), citing Kotteakos v. United States, 328 U.S. 750, 764-765 (1946).

2013In determining whether the constitutional error in the admission of the drug certificates was harmless beyond a reasonable doubt, the standard of review is whether, “on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the [jury] and did not contribute to the [jury’s verdicts].” Commonwealth v. Vasquez, 456 Mass. 350, 360 (2010), quoting from Commonwealth v. Tyree, 455 Mass. 676, 701 (2010).

2011See Melendez-Diaz, supra at 2542 (defendant “will often stipulate to the nature of the substance in the ordinary drug case”); Commonwealth v. Muniz, 456 Mass. 166 , 173 n.7 (2010); Commonwealth v. Vasquez, 456 Mass. at 355 (“The defendant, however, did not stipulate that the substances were cocaine”); Commonwealth v. Charles, 456 Mass. 378, 383 (2010) (rejecting the Commonwealth’s argument that reversal is not required where the nature of the substances was not a “ ‘live issue’ at trial” because “the defendant ‘tacitly stipulated’ to the nature of the substances” when defense counsel referred

2010See Commonwealth v. Perez, 411 Mass. 249 , 260 n.8 (1991), citing Kotteakos v. United States, 328 U.S. 750, 764-765 (1946).

1991In view of Fulminante , the problem in this case is clearly subject to the harmless error doctrine under Federal law. 8 The Commonwealth does not appear to dispute the fact that the test for harmless error to be applied in this case is the test for constitutional error and not the less stringent test for nonconstitutional error stated in Kotteakos v. United States, 328 U.S. 750, 764-765 (1946).

2010See Commonwealth v. Marini, 375 Mass. 510, 520 (1978) (“[I]t would be hard to say that the [error] was without effect on the jury and did not contribute to the verdict”); Commonwealth v. Gilday, 382 Mass. 166, 178 (1980) (“We should set aside the conviction unless we are ‘sure that the error did not influence the jury, or had but very slight effect’ ”), quoting from United States v. Agurs, 427 U.S. 97, 112 (1976); Commonwealth v. Perrot, 407 Mass. 539, 549 (1990) (“The essential question is whether the error had, or might have had, an effect on the jury and whether the error contributed to or

1978Others apparently think this standard too much like the harmless-error rule the Court specifically eschewed, 427 U.S. at 112 , and these courts apparently require more to upset a verdict in such circumstances than any reasonable likelihood that the evidence could have influenced the jury’s judgment.

2011See Melendez-Diaz, supra at 2542 (defendant “will often stipulate to the nature of the substance in the ordinary drug case”); Commonwealth v. Muniz, 456 Mass. 166 , 173 n.7 (2010); Commonwealth v. Vasquez, 456 Mass. at 355 (“The defendant, however, did not stipulate that the substances were cocaine”); Commonwealth v. Charles, 456 Mass. 378, 383 (2010) (rejecting the Commonwealth’s argument that reversal is not required where the nature of the substances was not a “ ‘live issue’ at trial” because “the defendant ‘tacitly stipulated’ to the nature of the substances” when defense counsel referred

2011See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-2532 (2009).

2000See United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994).

1995See United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994).

1997It is settled that “the harmless error standard of Chapman v. California, 386 U.S. 18 (1987), applies to jury instructions that violate the principles of [Sandstrom] and [Francis].” Rose v. Clarke, 478 U.S. 570, 572, 582 (1986).

1991It is established that “the harmless error standard of Chapman v. California, 386 U.S. 18 (1967), applies to jury instructions that violate the principles of [Sandstrom] and Francis v. Franklin." Rose v. Clark, 478 U.S. 570, 572 (1986).

1991In some instances, however, “prosecutorial comment on post-arrest silence, although unconstitutional, might constitute a harmless error under the standard of Chapman v. California, 386 U.S. 18 . . . (1967).” Commonwealth v. Mahdi, 388 Mass. 679, 696 (1983), quoting from Morgan v. Hall, 569 F.2d 1161, 1166 (1st Cir.), cert. denied, 437 U.S. 910 (1978).

1983“Both Hale and Doyle suggested, however, that in some instances prosecutorial comment on post-arrest silence, although unconstitutional, might constitute a harmless error under the standard of Chapman v. California, 386 U.S. 18 . . . (1967).” Morgan v. Hall, 569 F.2d 1161, 1166 (1st Cir.) cert. denied, 437 U.S. 910 (1978).

2018Harmless error analysis . "[I]f a constitutional right has been preserved and there has been no waiver, then it can only be ignored if we are convinced that the error was harmless beyond a reasonable doubt." Commonwealth v. Amirault , 424 Mass. 618 , 649, 677 N.E.2d 652 (1997).

2007However, even were we to consider the judge’s failure to hold a hearing and preliminarily rule on the voluntariness of the defendant’s confession under the unpreserved error standard, reversal would still be compelled because the evidence in the trial record gives rise to “serious doubt whether the result of the trial might have been different had the error not been made,” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999), and “doubt that the [defendant’s] guilt had been fairly adjudicated.” Commonwealth v. Amirault, 424 Mass. 618, 647 (1997).

2018"Where the defendant's constitutional right to cross-examine has been denied, *918 the prosecution bears the burden of establishing that the error was harmless." Commonwealth v. Vardinski , 438 Mass. 444 , 452, 780 N.E.2d 1278 (2003).

2018"Where the defendant's constitutional right to cross-examine has been denied, *918 the prosecution bears the burden of establishing that the error was harmless." Commonwealth v. Vardinski , 438 Mass. 444 , 452, 780 N.E.2d 1278 (2003).

2012The defendant asserts that this misstatement constituted structural error not subject to a harmless error analysis, citing Arizona v. Fulminante, 499 U.S. 279, 309-310 (1991).

1991Arizona v. Fulminante, 111 S. Ct. 1246 , 1263 *260 (1991).

2010The Van Arsdall Court also set out a list of factors for courts to consider when conducting such a harmless error review, including the over-all strength of the prosecution’s case. 2 Ibid.

2005See, e.g., Delaware v. Van Arsdall, 475 U.S. at 681-82 ; Commonwealth v. Miles, 420 Mass. at 73 ; Commonwealth v. Johnson, 417 Mass. at 505 n.6.

2010See Commonwealth v. Marini, 375 Mass. 510, 520 (1978) (“[I]t would be hard to say that the [error] was without effect on the jury and did not contribute to the verdict”); Commonwealth v. Gilday, 382 Mass. 166, 178 (1980) (“We should set aside the conviction unless we are ‘sure that the error did not influence the jury, or had but very slight effect’ ”), quoting from United States v. Agurs, 427 U.S. 97, 112 (1976); Commonwealth v. Perrot, 407 Mass. 539, 549 (1990) (“The essential question is whether the error had, or might have had, an effect on the jury and whether the error contributed to or

1979E.g., Milton v. Wainwright, 407 U.S. 371 (1972).

2007However, even were we to consider the judge’s failure to hold a hearing and preliminarily rule on the voluntariness of the defendant’s confession under the unpreserved error standard, reversal would still be compelled because the evidence in the trial record gives rise to “serious doubt whether the result of the trial might have been different had the error not been made,” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999), and “doubt that the [defendant’s] guilt had been fairly adjudicated.” Commonwealth v. Amirault, 424 Mass. 618, 647 (1997).

2001See Commonwealth v. Richardson, 429 Mass. 182, 185 (1999); Commonwealth v. LeFave, 430 Mass. 169 , 174 n.6 (1999); Commonwealth v. Lorenzetti, 48 Mass. App. Ct. 37, 40 (1999).

2006Id.

1990Satterwhite v. Texas, 486 U.S. 249, 256 (1988).

2006See, e.g., Commonwealth v. DiBenedetto, 414 Mass. 37, 40 (1992); Commonwealth v. Miles, 420 Mass. 67, 73 (1995); Commonwealth v. Vardinski, 438 Mass. 444, 452 (2003).

2005See, e.g., Delaware v. Van Arsdall, 475 U.S. at 681-82 ; Commonwealth v. Miles, 420 Mass. at 73 ; Commonwealth v. Johnson, 417 Mass. at 505 n.6.

2025See Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995) ("Where there is a substantial risk that the defendant was convicted of a crime for which he was not indicted by a grand jury, we cannot apply a harmless error standard"); Garcia, supra at 6 (defendant's rape of child conviction reversed where constructive amendment was one of substance).

2023See Yat Fung Ng, 489 Mass. at 253. 13We only review preserved constitutional errors under the harmless error standard, see Commonwealth v. Yasin, 483 Mass. 343 , 350 (2019), citing Commonwealth v. Tyree, 455 Mass. 676, 700-701 (2010), "unless the constitutional right infringed is 'so basic to a fair trial that [its] infraction can never be treated as harmless error'" (citation omitted), Commonwealth v. Vinnie, 428 Mass. 161, 163-164 (1998).

2023See Vinnie, supra. Under this more favorable standard, we presume prejudice when faced with a constitutional violation, and such prejudice can be overcome only where the Commonwealth makes an affirmative showing that the error is harmless beyond a reasonable doubt.

2023See id. at 589 ; Commonwealth v. Owens, 414 Mass. 595, 603 (1993).

2023See id. at 589 ; Commonwealth v. Owens, 414 Mass. 595, 603 (1993).

2023Id. at 554 , quoting Stirone v. United States, 361 U.S. 212, 217 (1960) ("depriving defendant of 'right to be tried only on charges presented in an indictment returned by a grand jury' is 'far too serious to be treated as We considered whether a specific unanimity jury 13 instruction could cure the constitutional error.

2023(Technically, the court should have applied the substantial likelihood of a miscarriage of justice standard, see Commonwealth v. Roberts, 378 Mass. 116, 123 [1979], but the Supreme Judicial Court treated substantial risk and substantial likelihood as interchangeable as late as 1987, see Commonwealth 14 "While the admission of a defendant's prearrest silence may not violate the due process principles of the United States Constitution, . . . testimony related to the defendant's silence in response to police questioning even before Miranda warnings are given may be inadmissible." Commonwealth v.