harmless error in Tennessee

2024The harmless error doctrine recognizes that the central purpose of a criminal trial is to decide factual questions of a defendant’s guilt or innocence, and it promotes the public’s respect for the criminal process by focusing on the underlying fairness of the trial rather than technicalities or “the virtually inevitable presence of immaterial error.” State v. Rodriguez, 254 S.W.3d 361, 366 (Tenn. 2008).

2024Our supreme court has stated that “non-structural constitutional errors do not require automatic reversal and are, therefore, subject to a harmless error analysis.” State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).

2019See Moore v. State, 485 S.W.3d 411, 421-22 (Tenn. - 12 - 2016) (describing the different harmless error analyses under State v. Williams, 977 S.W.2d 101 (Tenn. 1998) and State v. Allen, 69 S.W.3d 181 (Tenn. 2002)).

2015“Generally, in modern jurisprudence application of the harmless error doctrine is the rule rather than the exception.” See State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998).

2026The harmless error inquiry for when a lesser- included offense instruction was improperly omitted is “whether it appears beyond a reasonable doubt that the error did not affect the outcome of the trial.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002) (citation omitted).

2022A harmless error determination includes a “thorough examination of the record, including the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the jury.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002).

2015App. P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.”); Momon v. State, 18 S.W.3d 152, 164 (Tenn. 1999) (“‘[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’”) (quoting Delaware v. Van Arsdall, 475 U.S. 673 , -17- 681 (1986));

2015To the contrary, the harmless error doctrine promotes public respect for the judicial system by focusing on the underlying fairness of the proceeding “„rather than on the virtually inevitable presence of immaterial error.‟” Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986)). 6 In his reply brief, Father also asserted that the trial court failed to consider the factors in the parental relocation statute, Tenn. Code Ann. § 36-6-108 .

2019Our inquiry does not end here, however, because we must determine the harmful effect of the trial court’s error. -28- Before we undertake our harmless error analysis, we must first determine the type of harmless error analysis applicable in this case. “[F]or the purpose of the harmless error analysis,” our supreme court “has recognized three categories of error— structural constitutional error, non-structural constitutional error, and non-constitutional error.” State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003); State v. Garrison, 40

2015State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003); State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000); State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999).

2016The harmless error doctrine “recognizes that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” State v. Rodriguez, 254 S.W.3d 361, 366 (Tenn.2008) (citing Van Arsdall, 475 U.S. at 681 , 106 S.Ct. 1431 ); State v. Howell, 868 S.W.2d 238, 253 (Tenn.1993)).

2015The third factor in the harmless error analysis is whether the invalid aggravating circumstance “was established by evidence that was materially inaccurate or admissible only to support the invalid aggravator, or whether the evidence was otherwise admissible in either the guilt or sentencing phases of the proceeding.” Id.

2007Harmless error, relating to the failure to charge lesser included offenses, must be shown “beyond a reasonable doubt.” Ely, 48 S.W.3d at 727 .

2005Moving to the issue of omitting a lesser included offense instruction, our supreme court, after stating that “an erroneous failure to instruct on lesser-included offenses is a constitutional error,” State v. Ely, 48 S.W.3d 710, 726 (Tenn. 2001), has applied the harmless error standard for constitutional errors, id.

2022See, e.g., Neder v. United States, 527 U.S. 1, 18 (1999) (“The erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless-error analysis under our cases” (citations omitted)); Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (majority concluded that the harmless error rule adopted in Chapman v. California, 386 U.S. 18 , (1967), was applicable to the admission of coerced confessions that violate

2014Therefore, we apply the following harmless error standard to this erroneous instruction: “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. 18 at 24 .

2022See, e.g., Neder v. United States, 527 U.S. 1, 18 (1999) (“The erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless-error analysis under our cases” (citations omitted)); Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (majority concluded that the harmless error rule adopted in Chapman v. California, 386 U.S. 18 , (1967), was applicable to the admission of coerced confessions that violate

2000Harmless Error Analysis In Neder v. United States, 527 U.S. 1, 18 , 119 S.Ct. 1827, 1838 , 144 L.Ed.2d 35 (1999), the United States Supreme Court held that the harmless error inquiry in a failure-to-instruct case should be whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” The Court said: We believe that where an omitted element is supported by uncontroverted evidence, this approach reaches an appropriate balance between “society’s interest in punishing the guilty [and] the method by which decisions of guilt are made.” .

2019Our inquiry does not end here, however, because we must determine the harmful effect of the trial court’s error. -28- Before we undertake our harmless error analysis, we must first determine the type of harmless error analysis applicable in this case. “[F]or the purpose of the harmless error analysis,” our supreme court “has recognized three categories of error— structural constitutional error, non-structural constitutional error, and non-constitutional error.” State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn. 2003); State v. Garrison, 40

2018While substantial evidence of the defendant’s guilt makes it difficult for “the defendant to demonstrate that a non-constitutional error involving a substantial right more probably than not affected the outcome of the trial,” the harmless error inquiry “does not turn upon the existence of sufficient evidence to affirm a conviction or even a belief that the jury’s verdict [wa]s correct.” Id.

2004In conducting a harmless error analysis, this court must conduct a thorough examination of the record, which should include “the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the jury.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002). “[I]n determining whether it was harmless beyond a reasonable doubt not to charge a lesser-included offense, the reviewing court must determine whether a reasonable jury would have convicted the defendant of the lesser-included offense instead of the charged offense.” State v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002)

2003In State v. Richmond, 90 S.W.3d 648 (Tenn.2002), our supreme court ascertained that a trial court’s failure to give a natural and probable consequences instruction was subject to a harmless error analysis.

2022See, e.g., Neder v. United States, 527 U.S. 1, 18 (1999) (“The erroneous admission of evidence in violation of the Fifth Amendment’s guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless-error analysis under our cases” (citations omitted)); Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (majority concluded that the harmless error rule adopted in Chapman v. California, 386 U.S. 18 , (1967), was applicable to the admission of coerced confessions that violate

2000The cases in which the United States Supreme Court and this Court have refused to apply the harmless error doctrine involve errors that are "structural defects in the constitution of the trial mechanism." Fulminante, 499 U.S. at 310 , 111 S.Ct. at 1265 .

2019See Moore v. State, 485 S.W.3d 411, 421-22 (Tenn. - 12 - 2016) (describing the different harmless error analyses under State v. Williams, 977 S.W.2d 101 (Tenn. 1998) and State v. Allen, 69 S.W.3d 181 (Tenn. 2002)).

2016See State v. Moore, 485 S.W.3d 411 , 421- 22 (Tenn. 2016) (holding that under the harmless error analysis of State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002), this court should thoroughly examine the record, including the proof presented at trial, the defendant‘s theory of defense, and the jury‘s verdict; moreover, in examining the evidence presented at trial, this court should ―focus[] on the distinguishing element between the greater and lesser offenses, the strength of the evidence of the distinguishing element, and the existence of contradicting evidence of the distinguishing element‖ in de

2019See Williams, 977 S.W.2d at 105 ; see also Rose v. Clark, 478 U.S. 570, 579 (1986) (applying harmless error to the defendant’s absence during unconstitutional burden-shifting jury instructions on element of malice).

2010Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986); State v. Bush, 942 S.W.2d 489, 505 (Tenn. 1997); State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim.

2022See State v. Cannon, 254 S.W.3d 287, 298-99 (Tenn. 2008) (“We apply a harmless error analysis to ‘virtually all evidentiary errors . . . .’”) (quoting State v. James, 81 S.W.3d 751, 763 (Tenn. 2002); see also Tenn. R.

2022See Cannon, 254 S.W.3d at 298-99 (“We apply a harmless error analysis to ‘virtually all evidentiary errors . . . .’”) (quoting James, 81 S.W.3d at 763 ; see also Tenn. R.

2013See Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 , 561 n. 1 (Tenn.1981) (finding that the trial court committed harmless error in treating the defendant’s motion to dismiss for lack of personal jurisdiction as one for summary judgment).

2011See Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 , 561 n. 1 (Tenn.1981) (finding that the trial court committed harmless error in treating the defendant’s motion to dismiss for lack of personal jurisdiction as one for summary judgment).

2024State v. Maddin, 192 S.W.3d 558, 562 (Tenn. 2005); United States v. Olano, 507 U.S. 725, 732-37 (1993).

2009We must next consider whether consideration of the Confrontation Clause error is “necessary to do substantial justice.” In doing so, we note that “[a]lthough very similar to harmless error analysis, plain error review places on the defendant the burden of persuasion, whereas the State bears the burden of persuasion when an appellate court conducts a harmless error analysis.” State v. Gomez, 163 S.W.3d 632, 646 (Tenn. 2005), rev’d on other grounds, (citing United States v. Olano, 507 U.S. 725, 732 (1993)).

2016The harmless error doctrine “recognizes that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” State v. Rodriguez, 254 S.W.3d 361, 366 (Tenn.2008) (citing Van Arsdall, 475 U.S. at 681 , 106 S.Ct. 1431 ); State v. Howell, 868 S.W.2d 238, 253 (Tenn.1993)).

2016The harmless error doctrine “recognizes that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” State v. Rodriguez, 254 S.W.3d 361, 366 (Tenn.2008) (citing Van Arsdall, 475 U.S. at 681 , 106 S.Ct. 1431 ); State v. Howell, 868 S.W.2d 238, 253 (Tenn.1993)).

2026See State v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014) (stating that evidentiary errors are examined using a harmless error standard, in which “the defendant bears the burden of showing that the erroneous evidence ‘more probably than not’ affected the verdict”) (quoting Tenn. R.

2026Evidentiary errors are “non-constitutional errors” subject to “the harmless error analysis of Tenn[essee] R[ule of] App[elate] P[rocedure] 36(b).” State v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014).

2024“Harmless error analysis applies to virtually all evidentiary errors other than judicial bias and denial of counsel.” James, 81 S.W.3d at 763 (citing Wilson v. State, 724 S.W.2d 766, 769 (Tenn. Crim.

2022See State v. Cannon, 254 S.W.3d 287, 298-99 (Tenn. 2008) (“We apply a harmless error analysis to ‘virtually all evidentiary errors . . . .’”) (quoting State v. James, 81 S.W.3d 751, 763 (Tenn. 2002); see also Tenn. R.

2021See State v. Banks, 271 S.W.3d 90, 126 (Tenn. 2008) (“When undertaking a harmless error analysis . . . the reviewing court ‘should conduct a thorough examination of the record, including the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the jury.’”) (quoting State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002)).

2016See State v. Moore, 485 S.W.3d 411 , 421- 22 (Tenn. 2016) (holding that under the harmless error analysis of State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002), this court should thoroughly examine the record, including the proof presented at trial, the defendant‘s theory of defense, and the jury‘s verdict; moreover, in examining the evidence presented at trial, this court should ―focus[] on the distinguishing element between the greater and lesser offenses, the strength of the evidence of the distinguishing element, and the existence of contradicting evidence of the distinguishing element‖ in de

2024State v. Maddin, 192 S.W.3d 558, 562 (Tenn. 2005); United States v. Olano, 507 U.S. 725, 732-37 (1993).

2021See Maddin, 192 S.W.3d at 562 .

2017“Harmless error review looks . . . to the basis on which the jury actually rested its verdict.” Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). [C]ourts often identify certain factors to aid in discerning the actual basis on which a jury rested its verdict.

2000"Harmless error review looks ... to the basis on which the jury actually rested its verdict." Sullivan, 508 U.S. at 279 , 113 S.Ct. at 2081 .

2018When a defendant establishes the existence of all four Edgin factors, he “has inherently established that the violation was not harmless; thus, a separate harmless error analysis is unnecessary and inappropriate.” Jackson, 444 S.W.3d at 595 ; see also Kyles, 514 U.S. at 435 .

2001Assuming, arguendo, that a harmless-error inquiry were to apply, a Bagley error could not be treated as harmless, since “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” necessarily entails the conclusion that the suppression must have had “substantial and injurious effect or influence in determining the jury’s verdict.” 514 U.S. at 435 , 115 S.Ct. 1555 (internal citations omitted).

2010Newsome, 778 S.W.2d at 38 .

1991This court dealt with errors arising out of the non-constitutionally grounded omission by the trial court to give all of the Mackey instructions in State v. Newsome, supra. In that ease we expressly approved the application to such errors of the harmless error rules set out in T.R.A.P. 36(b) and Rule 52(a) Tenn.R.Crim.P.

1994See State v. Bobo, 727 S.W.2d 945, 956 (Tenn.1987), cert. denied, 484 U.S. 872 , 108 S.Ct. 204 , 98 L.Ed.2d 155 (1987); State v. Workman, 667 S.W.2d 44, 49 (Tenn.1984), cert. denied, 469 U.S. 873 , 105 S.Ct. 226 , 83 L.Ed.2d 155 (1984); State v. Cone, 665 S.W.2d 87, 94 (Tenn.1984), cert. denied, 467 U.S. 1210 , 104 S.Ct. 2400 , 81 L.Ed.2d 357 (1984); and State v. Campbell, 664 S.W.2d 281, 284 (Tenn.1984), cert. denied, 469 U.S. 920 , 105 S.Ct. 302 , 83 L.Ed.2d 236 (1984).

1992In the above felony murder cases, the sole aggravating factor was (i)(7). [2] In disallowing the jury from considering aggravating circumstance (i)(7) at the sentencing stage in all felony murder convictions, over one third of the persons on death row may have their sentences reviewed, first for a harmless error analysis, and upon a finding of harmful error as in this case, then for a remand to the trial court for resentencing. [1] State v. Boyd, 797 S.W.2d 589 (Tenn. 1990); State v. Cauthern, 778 S.W.2d 39 (Tenn. 1989); State v. Taylor, 774 S.W.2d 163 (Tenn. 1989); State v. Irick, 762 S.W.2d

2024See State v. Faulkner, 154 S.W.3d 48, 58-60 (Tenn. 2005) (applying the harmless error standard for non-constitutional errors after concluding that the trial court’s instructional error in including nature-of-conduct language in its definition of “intentionally” element of first degree premeditated murder, which is a result-of-conduct offense, was not an error of constitutional dimension).

2019“Not every erroneous jury instruction . . . rises to the level of constitutional error.” State v. Faulkner, 154 S.W.3d 48, 60 (Tenn. 2005) (citing Miller v. State, 54 S.W.3d 743, 746 (Tenn. 2001)).