harmless error in Michigan

2025Defendant appealed her convictions in this Court, and in lieu of granting leave to appeal, we ordered oral argument on the application, directing the parties to address: (1) whether the harmless error test in People v Lukity, 460 Mich 484 (1999), should be refined or amended, see generally People v Parsley, 500 Mich 1033 , 1033 (2017) (LARSEN, J., concurring); and (2) whether—under the Lukity standard or otherwise—the defendant is entitled to relief for the trial court’s erroneous exclusion on direct examination of the defendant’s testimony regarding a threat made by the victim. [People v Nels

2025Defendant sought leave to appeal in the Supreme Court, and the Supreme Court ordered oral argument on the application, directing the parties to address (1) whether the harmless-error test in People v Lukity, 460 Mich 484 (1999), should be refined or amended, and (2) whether—under the Lukity standard or otherwise—defendant is entitled to relief for the trial court’s erroneous exclusion on direct examination of defendant’s testimony regarding a threat made by the victim.

2019The applicable harmless-error standard requires "the beneficiary of the error to prove, and the court to determine, beyond a reasonable doubt that there is no 'reasonable possibility that the evidence complained of might have contributed to the conviction.' " People v. Anderson (After Remand) , 446 Mich. 392 , 406, 521 N.W.2d 538 (1994), quoting Chapman v. California , 386 U.S. 18 , 23, 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (quotation marks omitted). " 'Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.' " P

2019The applicable harmless-error standard requires "the beneficiary of the error to prove, and the court to determine, beyond a reasonable doubt that there is no 'reasonable possibility that the evidence complained of might have contributed to the conviction.' " People v. Anderson (After Remand) , 446 Mich. 392 , 406, 521 N.W.2d 538 (1994), quoting Chapman v. California , 386 U.S. 18 , 23, 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (quotation marks omitted). " 'Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.' " P

2026“The United States Supreme Court has determined that the erroneous admission of a confession into evidence is a nonstructural defect that does not justify automatic reversal but, instead, requires a harmless-error analysis.” People v Whitehead, 238 Mich App 1, 7 ; 604 NW2d 737 (1999), citing Arizona v Fulminante, 499 US 279, 295 ; 111 S Ct 1246 , 113 L Ed 2d 302 (1991).

2026“The United States Supreme Court has determined that the erroneous admission of a confession into evidence is a nonstructural defect that does not justify automatic reversal but, instead, requires a harmless-error analysis.” People v Whitehead, 238 Mich App 1, 7 ; 604 NW2d 737 (1999), citing Arizona v Fulminante, 499 US 279, 295 ; 111 S Ct 1246 , 113 L Ed 2d 302 (1991).

2022Although preserved structural errors are subject to automatic reversal, the alleged error here was forfeited. 7 In order to receive relief on a forfeited claim of constitutional error, a defendant must prove that (1) error occurred, (2) the error “was plain, i.e., clear or 7 Although the term “structural error” was coined in the context of preserved claims of errors exempt from the harmless-error standard, for brevity’s sake, and for the sake of the bench and bar moving forward, we will also use the term “structural error” to include the same type of errors, even when unpreserved. 10 obvious,”

2022Although preserved structural errors are subject to automatic reversal, the alleged error here was forfeited. 7 In order to receive relief on a forfeited claim of constitutional error, a defendant must prove that (1) error occurred, (2) the error “was plain, i.e., clear or 7 Although the term “structural error” was coined in the context of preserved claims of errors exempt from the harmless-error standard, for brevity’s sake, and for the sake of the bench and bar moving forward, we will also use the term “structural error” to include the same type of errors, even when unpreserved. 10 obvious,”

2024See LeBlanc, 465 Mich at 591 n 12.

2024See People v LeBlanc, 465 Mich 575 , 591 n 12; 640 NW2d 246 (2002).

2021Waclawski, 286 Mich App at 679 . -22- of the evidence would support it.” People v Cornell, 466 Mich 335, 357 ; 646 NW2d 127 (2002). “[W]here a trial court erroneously refuses to give a requested instruction on a necessarily included lesser offense, a harmless-error analysis applies to the instructional error.” Hall, 256 Mich App 674, 677 ; 671 NW2d 545 (2003).

2021Waclawski, 286 Mich App at 679 . -22- of the evidence would support it.” People v Cornell, 466 Mich 335, 357 ; 646 NW2d 127 (2002). “[W]here a trial court erroneously refuses to give a requested instruction on a necessarily included lesser offense, a harmless-error analysis applies to the instructional error.” Hall, 256 Mich App 674, 677 ; 671 NW2d 545 (2003).

2019“Harmless error analysis applies to claims concerning Confrontation Clause errors, [b]ut to safeguard the jury trial guarantee, a reviewing court must conduct a thorough examination of the record in order to evaluate whether it is clear, beyond a reasonable doubt, that the jury verdict would have been the same absent the error.” People v Shepherd, 472 Mich 343, 348 ; 697 NW2d 144 (2005) (citation and quotation marks omitted).

2019“Harmless error analysis applies to claims concerning Confrontation Clause errors, [b]ut to safeguard the jury trial guarantee, a reviewing court must conduct a thorough examination of the record in order to evaluate whether it is clear, beyond a reasonable doubt, that the jury verdict would have been the same absent the error.” People v Shepherd, 472 Mich 343, 348 ; 697 NW2d 144 (2005) (citation and quotation marks omitted).

2017People v Shepherd, 472 Mich 343, 348 ; 697 NW2d 144 (2005) (“Harmless error analysis applies to claims concerning Confrontation Clause errors, see Delaware v Van Arsdall, 475 US 673, 684 ; 106 S Ct 1431 ; 89 L Ed 2d 674 (1986).”).

2017People v Shepherd, 472 Mich 343, 348 ; 697 NW2d 144 (2005) (“Harmless error analysis applies to claims concerning Confrontation Clause errors, see Delaware v Van Arsdall, 475 US 673, 684 ; 106 S Ct 1431 ; 89 L Ed 2d 674 (1986).”).

2009If two or more offenses are joined or consolidated for trial pursuant to Rule 8(b), the defendant has the right to a severance of the offenses unless the offenses are part of a common scheme or plan and the evidence of one would be admissible in the trial of the others. [34] While I am not convinced that a harmless-error analysis is appropriate here, because I conclude that the error in this case was not harmless, I need not answer that question. [35] People v. Lukity, 460 Mich. 484, 495-496 , 596 N.W.2d 607 (1999). [36] People v. Robinson, 386 Mich. 551, 562 , 194 N.W.2d 709 (1972). [37] Ante

2009If two or more offenses are joined or consolidated for trial pursuant to Rule 8(b), the defendant has the right to a severance of the offenses unless the offenses are part of a common scheme or plan and the evidence of one would be admissible in the trial of the others. [34] While I am not convinced that a harmless-error analysis is appropriate here, because I conclude that the error in this case was not harmless, I need not answer that question. [35] People v. Lukity, 460 Mich. 484, 495-496 , 596 N.W.2d 607 (1999). [36] People v. Robinson, 386 Mich. 551, 562 , 194 N.W.2d 709 (1972). [37] Ante

2024The challenge here is that the use of a traditional harmless error review standard does not fit well with application of most of the nonconstitutional reasons for recusal set 5 Contrary to structural constitutional errors, which require a court to “automatically reverse,” there are “trial errors that ‘occur during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.’ ” Anderson, 446 Mich at 405-406 , quoting Fulminante, 499 US at

2020All this aside, however, I join the Court’s denial order because even under the appropriate harmless-error standard of review, see People v Anderson (After Remand), 446 Mich 392, 405-406 (1994), I cannot conclude that defendant is entitled to relief.

1983Under the first prong of the two-pronged harmless error test, *382 see People v Swan, 56 Mich App 22 ; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975), these instructions were not so offensive that they could never be deemed harmless.

1983Under the first prong of the two-pronged harmless error test, *382 see People v Swan, 56 Mich App 22 ; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975), these instructions were not so offensive that they could never be deemed harmless.

2020See Weaver, ___ US at ___; 137 S Ct at 1907 ; Neder, 527 US at 7 ; see also People v Houthoofd, 487 Mich 568, 587 ; 790 NW2d 315 (2010) (“A structural error . . . is a fundamental constitutional error that defies a harmless error analysis.”); People v Cornell, 466 Mich 335 , 363 n 17; 646 NW2d 127 (2002) (“Structural error is a concept that has typically been applied to errors of constitutional magnitude[.]”).

2015Rather, a preserved claim of instructional error is reviewed under the harmless-error standard, and requires a “thorough examination of the record” in determining whether, beyond a reasonable doubt, “the jury verdict would have been the same absent the error[;] for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding[,] [a court] should not find the error harmless.” Neder, 527 US at 19 .

2020The prosecution cites People v Head, 323 Mich App 526 ; 917 NW2d 752 (2018), in support of the claim that the failure to timely file the amended information was a harmless error.

2020The prosecution cites People v Head, 323 Mich App 526 ; 917 NW2d 752 (2018), in support of the claim that the failure to timely file the amended information was a harmless error.

2023See MCR 3.902(A) (“[l]imitations on corrections of error are governed by MCR 2.613.”); see also In re Utrera, 281 Mich App at 14 (acknowledging that the harmless-error analysis applies to proceedings involving juveniles).

2023See MCR 3.902(A) (“[l]imitations on corrections of error are governed by MCR 2.613.”); see also In re Utrera, 281 Mich App at 14 (acknowledging that the harmless-error analysis applies to proceedings involving juveniles).

2022See People v Hall, 435 Mich 599, 609-613 ; 460 NW2d 520 (1990) (applying the harmless error standard to preliminary examination errors).

2022See People v Hall, 435 Mich 599, 609-613 ; 460 NW2d 520 (1990) (applying the harmless error standard to preliminary examination errors).

2015Fulminante, 499 US at 309-310 (recognizing the deprivation of the right to an impartial judge as a structural error and explaining that “[t]he entire conduct of the trial from beginning to end is obviously affected ... by the presence on the bench of a judge who is not impartial”); Rose v Clark, 478 US 570, 577 ; 106 S Ct 3101 ; 92 L Ed 2d 460 (1986) (“Despite the strong interests that support the harmless-error doctrine, . . . some constitutional errors [including adjudication by a biased judge] require reversal without regard to the evidence in the particular case.”); Chapman v California, 3

2015Fulminante, 499 US at 309-310 (recognizing the deprivation of the right to an impartial judge as a structural error and explaining that “[t]he entire conduct of the trial from beginning to end is obviously affected ... by the presence on the bench of a judge who is not impartial”); Rose v Clark, 478 US 570, 577 ; 106 S Ct 3101 ; 92 L Ed 2d 460 (1986) (“Despite the strong interests that support the harmless-error doctrine, . . . some constitutional errors [including adjudication by a biased judge] require reversal without regard to the evidence in the particular case.”); Chapman v California, 3

2002In addressing the harmless error issue, the parties shall discuss the applicability of People v. Richardson, 409 Mich. 126 , 293 N.W.2d 332 (1980), People v. Beach, 429 Mich. 450 , 418 N.W.2d 861 (1988), People v. Mosko, 441 Mich. 496 , 495 N.W.2d 534 (1992), People v. Lukity, 460 Mich. 484 , 596 N.W.2d 607 (1999), People v. Snyder, 462 Mich. 38 , 609 N.W.2d 831 (2000), and People v. Elston, 462 Mich. 751 , 614 N.W.2d 595 (2000). [4] In 1861, this Court explained, "It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of an offense o

2002In addressing the harmless error issue, the parties shall discuss the applicability of People v Richardson, 409 Mich 126 (1980), People v Beach, 429 Mich 450 (1988), People v Mosko, 441 Mich 496 (1992), People v Lukity, 460 Mich 484 (1999), People v Snyder, 462 Mich 38 (2000), and People v Elston, 462 Mich 751 (2000). 4 In 1861, this Court explained, “It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it.” People v McDonald, 9 Mich 150, 153 (1861). 5 People v Cazal, 412 Mich 680,

2025“Under the harmless-error rule set forth in MCL 769.26, it is presumed that preserved, nonconstitutional error—such as evidentiary -14- error—is harmless, and to overcome that presumption the appellant bears the burden of demonstrating, on the strength of the entire record, ‘that it is more probable than not that the error was outcome determinative.’ ” People v Propp (On Remand), 340 Mich App 652 , 661-662; 987 NW2d 888 (2022), quoting People v Lukity, 460 Mich 484, 496 ; 596 NW2d 607 (1999); see also People v Gursky, 486 Mich 596, 619 ; 768 NW2d 579 (2010) (“[T]he admission of a hearsay state

2024The prejudice inquiry of the harmless-error doctrine “focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.” People v Gursky, 486 Mich 596, 620 ; 786 NW2d 579 (2010) (cleaned up).

2024See MCR 3.901(B)(1) (explaining certain court rules, including MCR 3.902, “apply to delinquency proceedings and child protective proceedings”); 3.902(A) (explaining “[l]imitations on corrections of error are governed by MCR 2.613”); MCR 2.613(A) (an error is “not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.”); In re Williams, 286 Mich App 253, 273 ; 779 NW2d 286 (2009) (applying the harmless error standard in a

2024See MCR 3.901(B)(1) (explaining certain court rules, including MCR 3.902, “apply to delinquency proceedings and child protective proceedings”); 3.902(A) (explaining “[l]imitations on corrections of error are governed by MCR 2.613”); MCR 2.613(A) (an error is “not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.”); In re Williams, 286 Mich App 253, 273 ; 779 NW2d 286 (2009) (applying the harmless error standard in a

2019The prosecution filed an application for leave to appeal and the Supreme Court ordered oral argument on the application while also providing as follows: The appellant shall file a supplemental brief within 42 days of the date of this order addressing: (1) whether the harmless error tests articulated in MCR 2.613 and MCL 769.26 apply to violations of the habitual offender notice requirements set forth in MCL 769.13, compare People v Cobley, 463 Mich 893 (2000), with People v Johnson, 495 Mich 919 (2013); (2) whether the prosecutor may establish that a defendant received a habitual offender noti

2019In considering the application, the Court asked the parties to address several questions regarding the filing and service of a request for habitual offender enhancement including, “(1) whether the harmless error tests articulated in MCR 2.613 and MCL 769.26 apply to violations of the habitual offender notice requirements set forth in MCL 769.13, compare People v. Cobley, 463 Mich. 893 , 618 N.W.2d 768 (2000), with People v. Johnson, 495 Mich. 919 , 840 N.W.2d 373 (2013).” However, unless and until the Supreme Court overrules or modifies Head, we are bound to follow the rule of law established

2000One of those violations, involved in Gideon v Wainwright, 372 US *605 335 [ 83 S Ct 792 ; 9 L Ed 2d 799 ] (1963), was the total deprivation of the right to counsel at trial.

2000One of those violations, involved in Gideon v Wainwright, 372 US *605 335 [ 83 S Ct 792 ; 9 L Ed 2d 799 ] (1963), was the total deprivation of the right to counsel at trial.