reasonable doubt error in Washington

2016Ford claims that without an instruction stating 2 Significantly, the Supreme Court in Bennett affirmed the defendant’s conviction even though the trial court’s reasonable doubt instruction differed from WPIC 4.01. 161 Wn.2d at 318 . 20 No. 46998-7-II that he had no burden, the jury could have believed it had to convict unless Ford presented more persuasive evidence than the State.

2016But the Supreme Court in Bennett affirmed the defendant’s conviction even though the trial court’s reasonable doubt instruction differed from WPIC 4.01. 161 Wn.2d at 318 .

2026App. 417, 431 , 220 P.3d 1273 (2009)). “ ‘When a prosecutor compares the reasonable doubt standard to everyday decision making, it improperly minimizes and trivializes the gravity of the standard and the jury's role.’ ” Lindsay, 180 Wn.2d at 436 (quoting State v. Lindsay, 171 Wn.

2021It happens every single day in our country.” A prosecutor commits misconduct by trivializing the State’s burden of proof by “ ‘compar[ing] the reasonable doubt standard to everyday decision 2 No. 81107-0-I/3 making.’ ” State v. Lindsay, 180 Wn.2d 423, 436 , 326 P.3d 125 (2014) (quoting State v. Lindsay, 171 Wn.

2020Indeed, our Supreme Court has upheld a jury instruction containing this statement, reasoning that it “satisfied the minimum requirements of due process.” State v. Bennett, 161 Wn.2d 303, 318 , 165 P.3d 1241 (2007).

2017In State v. Bennett, our Supreme Court again approved use of WPIC 4.01 and concluded that it allows both the State and defendant to argue their theories of the case. 161 Wn.2d 303, 317 , 165 P.3d 1241 (2007).

2026App. 417, 431 , 220 P.3d 1273 (2009)). “ ‘When a prosecutor compares the reasonable doubt standard to everyday decision making, it improperly minimizes and trivializes the gravity of the standard and the jury's role.’ ” Lindsay, 180 Wn.2d at 436 (quoting State v. Lindsay, 171 Wn.

2011The State's *510 closing argument in Anderson compared the reasonable doubt standard to the choice of getting elective dental surgery where, "`[i]f you go ahead and do it, you were convinced beyond a reasonable doubt'" that you needed it. 153 Wash.App. at 425 , 220 P.3d 1273 .

2012A constitutional error is harmless if it appears “beyond a reasonable doubt that the error did not contribute to the ultimate verdict.” State v. Berube, 150 Wn.2d 498, 505-06 , 79 P.3d 1144 (2003) (citing State v. Brown, 147 Wn.2d 330 , 341, 58 P.3d 889 (2002)).

2012Ed. 2d 35 (1999) (applying harmless error analysis where trial court erroneously omitted element to an offense in jury instruction and violated jury trial right). “[A]n instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9 . “[T]o determine that a constitutional error is harmless, it must appear beyond a reasonable doubt that the error did not contribute to the ultimate verdict.” State v. Berube, 150 Wn.2d 498, 505 , 79 P.3d 1144 (2003).

2016But we exercise our discretion under RAP 2.5(a) and address his arguments. 4 In Bennett, the trial court added language to the reasonable doubt instruction based on State v. Castle, 86 Wn.

2006CP at 27 (Instruction 3) (emphasis added). ¶11 WPIC 4.01A is based on the reasonable doubt instruction that Division One of this court approved in State v. Castle, 86 Wn.

2026App. 417, 431 , 220 P.3d 1273 (2009)). “ ‘When a prosecutor compares the reasonable doubt standard to everyday decision making, it improperly minimizes and trivializes the gravity of the standard and the jury's role.’ ” Lindsay, 180 Wn.2d at 436 (quoting State v. Lindsay, 171 Wn.

2021It happens every single day in our country.” A prosecutor commits misconduct by trivializing the State’s burden of proof by “ ‘compar[ing] the reasonable doubt standard to everyday decision 2 No. 81107-0-I/3 making.’ ” State v. Lindsay, 180 Wn.2d 423, 436 , 326 P.3d 125 (2014) (quoting State v. Lindsay, 171 Wn.

2024However, the failure to give an instruction can be harmless. “ ‘An erroneous instruction is harmless if, from the record in [the] case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Carter, 154 Wn.2d 71, 81 , 109 P.3d 823 (2005) (alteration in original) (quoting State v. Brown, 147 Wn.2d 330, 332 , 58 P.3d 889 (2002)).

2023State v. Frost, 160 Wn.2d 765, 780 , 161 P.3d 361 (2007). “‘An erroneous instruction is harmless if, from the record in [the] case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” State v. Carter, 154 Wn.2d 71, 81 , 109 P.3d 823 (2005) (alteration in original) (quoting Brown, 147 Wn.2d at 332 ).

2024However, the failure to give an instruction can be harmless. “ ‘An erroneous instruction is harmless if, from the record in [the] case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Carter, 154 Wn.2d 71, 81 , 109 P.3d 823 (2005) (alteration in original) (quoting State v. Brown, 147 Wn.2d 330, 332 , 58 P.3d 889 (2002)).

2023State v. Frost, 160 Wn.2d 765, 780 , 161 P.3d 361 (2007). “‘An erroneous instruction is harmless if, from the record in [the] case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” State v. Carter, 154 Wn.2d 71, 81 , 109 P.3d 823 (2005) (alteration in original) (quoting Brown, 147 Wn.2d at 332 ).

2012A constitutional error is harmless if it appears “beyond a reasonable doubt that the error did not contribute to the ultimate verdict.” State v. Berube, 150 Wn.2d 498, 505-06 , 79 P.3d 1144 (2003) (citing State v. Brown, 147 Wn.2d 330 , 341, 58 P.3d 889 (2002)).

2012Ed. 2d 35 (1999) (applying harmless error analysis where trial court erroneously omitted element to an offense in jury instruction and violated jury trial right). “[A]n instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9 . “[T]o determine that a constitutional error is harmless, it must appear beyond a reasonable doubt that the error did not contribute to the ultimate verdict.” State v. Berube, 150 Wn.2d 498, 505 , 79 P.3d 1144 (2003).

2017Lewis challenges admission of Hynd's two statements of identification, but does not challenge the remainder of the trial court's findings and thus they are verities on appea1.33 30 Id. at 117 . 31 Id. 32 State v. Anderson, 171 Wn.2d 764, 770 , 254 P.3d 815 (2011)(quoting State v. Guloy, 104 Wn.2d 412, 426 , 705 P.2d 1182 (1985)). 33 State v. Homan, 181 Wn.2d 102, 106 , 330 P.3d 182 (2014). 7 No. 75662-1-1/8 On January 27 and 28, 2016, two calls were placed from the unit where Lewis was held.

2017Lewis challenges admission of Hynd's two statements of identification, but does not challenge the remainder of the trial court's findings and thus they are verities on appea1.33 30 Id. at 117 . 31 Id. 32 State v. Anderson, 171 Wn.2d 764, 770 , 254 P.3d 815 (2011)(quoting State v. Guloy, 104 Wn.2d 412, 426 , 705 P.2d 1182 (1985)). 33 State v. Homan, 181 Wn.2d 102, 106 , 330 P.3d 182 (2014). 7 No. 75662-1-1/8 On January 27 and 28, 2016, two calls were placed from the unit where Lewis was held.

2016App. 355, 369 , 366 P.3d 956 (2016). 23 Appellant’s Br. at 24. 24 RP (July 30, 2014) at 482. 25 State v. Emery, 174 Wn.2d 741, 760-61 , 278 P.3d 653 (2012) (citing State v. Stenson, 132 Wn.2d 668, 727 , 940 P.2d 1239 (1997)). 26 Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455 , 258 P.3d 43 (2011)). 27 Id. at 763; accord State v. Smith, 144 Wn.2d 665, 679 , 30 P.3d 1245 , 39 P.3d 294 (2001) (“Some improper prosecutorial remarks can touch on a constitutional right but still be curable.’’); see also State v. Warren, 165 Wn.2d 17, 28 , 195 P.3d 940 (2008) (prosecutor’s flagrantly impro

2014Bjorgen, J. ¶24 (dissenting) The logic and policy of the decision in State v. Emery, 174 Wn.2d 741 , 278 P.3d 653 (2012), impels the conclusion that the preliminary reasonable doubt instruction in this prosecution was constitutionally flawed.

2015The State must show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24 ; State v. Stephens, 93 Wn.2d 186, 190-91 , 607 P.2d 304 (1980); State v. Lui, 179 Wn.2d 457, 528 , 315 P.3d 493 , cert. denied, 134 S. Ct. 2842 (2014). “ ‘A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.’ ” Franklin, 180 Wn.2d at 382 (quoting State v. Watt, 160 Wn.2d 626, 635 , 160 P.3d 640 (2007)).

2015The State must show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24 ; State v. Stephens, 93 Wn.2d 186, 190-91 , 607 P.2d 304 (1980); State v. Lui, 179 Wn.2d 457, 528 , 315 P.3d 493 , cert. denied, 134 S. Ct. 2842 (2014). “ ‘A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.’ ” Franklin, 180 Wn.2d at 382 (quoting State v. Watt, 160 Wn.2d 626, 635 , 160 P.3d 640 (2007)).

2026We described the constitutional harmless error test in terms similar to the contribution test: “A constitutional error is harmless if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’” Id. (quoting State v. Brown, 147 Wn.2d 330, 341 , 58 P.3d 889 (2002) (quoting Neder, 527 U.S. at 15 )).

2024Harmless Error “A constitutional error is harmless if ‘it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. A.M., 194 Wn.2d 33, 41 , 448 P.3d 35 (2019) (internal quotation marks omitted) (quoting State v. Brown, 147 Wn.2d 330, 341 , 58 P.3d 889 (2002)). “ ‘An error is not harmless beyond a reasonable doubt when there is a reasonable probability 24 No. 86608-7-I/25 that the outcome of the trial would have been different had the error not occurred.’ ” A.M., 194 Wn.2d at 41 (quoting State v. Powell, 126 Wn.2d 244, 267 , 893 P.2d