manifest constitutional error in Washington

2026A manifest constitutional error occurs if “ ‘the asserted error had practical and identifiable consequences in the trial of the case.’ ” State v. A.M., 194 Wn.2d 33, 38 , 448 P.3d 35 (2019) (internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 99 , 217 P.3d 756 (2009)).

2026State v. Gordon, 172 Wn.2d 671 , 676 & n.2, 260 P.3d 884 (2011); see O’Hara, 167 Wn.2d at 99 (“[A] harmless error analysis occurs after the court determines the error is a manifest constitutional error. … The determination of whether there is actual prejudice is a different question and involves a 13 86238-3-I/14 different analysis as compared to the determination of whether the error warrants a reversal.”).

2023As explained above, “‘Manifest’ in RAP 2.5(a)(3) requires a showing of actual prejudice.” Kirkman, 159 Wn.2d at 935 . “[T]he focus of the actual prejudice must be on whether the error is so obvious on the record that the error warrants appellate review.” O’Hara, 167 Wn.2d at 99-100 . “[A] harmless error analysis occurs after the court determines the error is a manifest constitutional error.”5 Id. at 99 .

2021Generally, an appellate court will not review issues raised for the first time on appeal. 2 A recognized exception to this rule allows review if the appellant shows a “manifest error affecting a constitutional right.” 3 To establish a manifest constitutional error, the appellant must identify a constitutional error and make a showing the error likely prejudiced their rights at trial. 4 “It is this showing of actual prejudice that makes the error ‘manifest,’ allowing appellate review.” 5 “Thus, a court previews the merits of the constitutional argument first raised on appeal to determine if it

2009Under these circumstances the alleged error should be reviewed in the interest of justice, even if found not to be a manifest constitutional error as RAP 2.5(a) permits but does not require the Court of Appeals to decline review of an assignment of error. [2] In contrast to State v. Scott, 110 Wash.2d 682, 686 , 757 P.2d 492 (1988), which concerned omission of a definition for a common term, "knowledge."

2009Under these circumstances the alleged error should be reviewed in the interest of justice, even if found not to be a manifest constitutional error as RAP 2.5(a) permits but does not require the Court of Appeals to decline review of an assignment of error. [2] In contrast to State v. Scott, 110 Wash.2d 682, 686 , 757 P.2d 492 (1988), which concerned omission of a definition for a common term, "knowledge."

2021In Heatley, Division One of this court noted that an opinion that encompasses ultimate factual issues supporting a conclusion that the defendant is guilty does not necessarily make that testimony an improper opinion on guilt constituting a manifest constitutional error. 70 Wn.

2007There, the court said it rejected Carlin “to the extent it is read as holding that a claim that testimony is an opinion on guilt necessarily alleges a manifest constitutional error that will be considered for the first time on appeal under RAP 2.5(a).” Id. (emphasis added).

2026“If a court determines the claim raises a manifest constitutional error, it may still be subject to a harmless error analysis.” Id.

2026A manifest constitutional error occurs if “ ‘the asserted error had practical and identifiable consequences in the trial of the case.’ ” State v. A.M., 194 Wn.2d 33, 38 , 448 P.3d 35 (2019) (internal quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 99 , 217 P.3d 756 (2009)).

2021Generally, an appellate court will not review issues raised for the first time on appeal. 2 A recognized exception to this rule allows review if the appellant shows a “manifest error affecting a constitutional right.” 3 To establish a manifest constitutional error, the appellant must identify a constitutional error and make a showing the error likely prejudiced their rights at trial. 4 “It is this showing of actual prejudice that makes the error ‘manifest,’ allowing appellate review.” 5 “Thus, a court previews the merits of the constitutional argument first raised on appeal to determine if it

2016Further, a manifest constitutional error is subject to a harmless error analysis.32 We employ the "overwhelming untainted evidence test" to determine if the error was harmless beyond a reasonable doubt.33 Under that test, we examine whether the untainted evidence is so overwhelming that it leads necessarily to a finding of guilt.34 We presume that constitutional errors are prejudicial, and the State 27 Montgomery, 163 Wn.2d at 595 . 28159 Wn.2d 918 , 155 P.3d 125 (2007). 29 163 Wn.2d 577 , 183 P.3d 267 (2008). 30 Kirkman. 159 Wn.2d at 937 ; Montgomery. 163 Wn.2d at 595-96 . 31 Montgomery. 163

2021Generally, an appellate court will not review issues raised for the first time on appeal. 2 A recognized exception to this rule allows review if the appellant shows a “manifest error affecting a constitutional right.” 3 To establish a manifest constitutional error, the appellant must identify a constitutional error and make a showing the error likely prejudiced their rights at trial. 4 “It is this showing of actual prejudice that makes the error ‘manifest,’ allowing appellate review.” 5 “Thus, a court previews the merits of the constitutional argument first raised on appeal to determine if it

2021Generally, an appellate court will not review issues raised for the first time on appeal. 2 A recognized exception to this rule allows review if the appellant shows a “manifest error affecting a constitutional right.” 3 To establish a manifest constitutional error, the appellant must identify a constitutional error and make a showing the error likely prejudiced their rights at trial. 4 “It is this showing of actual prejudice that makes the error ‘manifest,’ allowing appellate review.” 5 “Thus, a court previews the merits of the constitutional argument first raised on appeal to determine if it

2023In the context of whether an opinion on guilt was a manifest constitutional error that could be raised for the first time on review under RAP 2.5(a)(3), the court has said, “Important to the determination of whether opinion testimony prejudices the defendant is whether the jury was properly instructed.” Montgomery, 163 Wn.2d at 595 .

2016Further, a manifest constitutional error is subject to a harmless error analysis.32 We employ the "overwhelming untainted evidence test" to determine if the error was harmless beyond a reasonable doubt.33 Under that test, we examine whether the untainted evidence is so overwhelming that it leads necessarily to a finding of guilt.34 We presume that constitutional errors are prejudicial, and the State 27 Montgomery, 163 Wn.2d at 595 . 28159 Wn.2d 918 , 155 P.3d 125 (2007). 29 163 Wn.2d 577 , 183 P.3d 267 (2008). 30 Kirkman. 159 Wn.2d at 937 ; Montgomery. 163 Wn.2d at 595-96 . 31 Montgomery. 163

2016Further, a manifest constitutional error is subject to a harmless error analysis.32 We employ the "overwhelming untainted evidence test" to determine if the error was harmless beyond a reasonable doubt.33 Under that test, we examine whether the untainted evidence is so overwhelming that it leads necessarily to a finding of guilt.34 We presume that constitutional errors are prejudicial, and the State 27 Montgomery, 163 Wn.2d at 595 . 28159 Wn.2d 918 , 155 P.3d 125 (2007). 29 163 Wn.2d 577 , 183 P.3d 267 (2008). 30 Kirkman. 159 Wn.2d at 937 ; Montgomery. 163 Wn.2d at 595-96 . 31 Montgomery. 163

2010State v. Montgomery, 163 Wn.2d 577, 595 , 183 P.3d 267 (2008) (citing Kirkman, 159 Wn.2d at 937 ). ¶16 Here, because Elmore did not object to the testimony at trial, she must demonstrate a manifest constitutional error.

2026See State v. Kalebaugh, 183 Wn.2d 578, 585 , 355 P.3d 253 (2015) (“Harmless error analysis occurs after the court determines the error is a manifest constitutional error and is a separate inquiry.”).

2026See State v. Kalebaugh, 183 Wn.2d 578, 585 , 355 P.3d 253 (2015) (“Harmless error analysis occurs after the court determines the error is a manifest constitutional error and is a separate inquiry.”).

2018See, e.g., State v. Bobenhouse, 166 Wn.2d 881, 891-95 , 214 P.3d 907 (2009).

2016State v. Bobenhouse, 166 Wn.2d 881 , 892 n.4, 214 P.3d 907 (2009).

2018See, e.g., State v. Bobenhouse, 166 Wn.2d 881, 891-95 , 214 P.3d 907 (2009).

2016State v. Bobenhouse, 166 Wn.2d 881 , 892 n.4, 214 P.3d 907 (2009).

2025RAP 2.5(a)(3); see State v. WWJ Corp., 138 Wn.2d 595, 604-06 , 980 P.2d 1257 (1999) (applying RAP 2.5(a)(3) to an excessive fines issue but finding the record inadequate to judge the offense’s “gravity”). 3 This is plainly insufficient to satisfy Miller’s burden under RAP 2.5(a).

2021State v. WWJ Corp., 138 Wn.2d 595, 602 , 980 P.2d 1257 (1999).

2025RAP 2.5(a)(3); see State v. WWJ Corp., 138 Wn.2d 595, 604-06 , 980 P.2d 1257 (1999) (applying RAP 2.5(a)(3) to an excessive fines issue but finding the record inadequate to judge the offense’s “gravity”). 3 This is plainly insufficient to satisfy Miller’s burden under RAP 2.5(a).

2021State v. WWJ Corp., 138 Wn.2d 595, 602 , 980 P.2d 1257 (1999).

2024See State v. Irby, 187 Wn.

2024“When a juror makes an unqualified statement expressing actual bias, seating the juror is a manifest constitutional error.” Irby, 187 Wn.

2017When the State presents evidence of several acts, any one of which is allegedly sufficient to constitute the crime charged, the "'jury must be unanimous as to which act or incident constitutes a particular charged count of criminal conduct.'"21 The State must elect the act it is relying on or the trial court must instruct the jury that the jury must agree as to what act or acts the State proved beyond a reasonable doubt.22 But this rule does not apply when the State presents evidence of multiple acts that are a "continuing course of conduct.'"23 To determine whether criminal conduct constitute

2015RAP 2.5; State v. Walsh, 143 Wn.2d 1, 6-7 , 17 P.3d 591 (2001).

2017When the State presents evidence of several acts, any one of which is allegedly sufficient to constitute the crime charged, the "'jury must be unanimous as to which act or incident constitutes a particular charged count of criminal conduct.'"21 The State must elect the act it is relying on or the trial court must instruct the jury that the jury must agree as to what act or acts the State proved beyond a reasonable doubt.22 But this rule does not apply when the State presents evidence of multiple acts that are a "continuing course of conduct.'"23 To determine whether criminal conduct constitute

2015RAP 2.5; State v. Walsh, 143 Wn.2d 1, 6-7 , 17 P.3d 591 (2001).

2007Prior decisions in the Court of Appeals have found alleged improper witness opinion testimony not to constitute "manifest" error. [3] ¶ 56 However, in Kirkman the Court of Appeals relied upon Dolan, 118 Wash.App. at 330 , 73 P.3d 1011 and State v. Saunders, 120 Wash.App. 800, 811 , 86 P.3d 232 (2004), in concluding that improper witness testimony can be raised for the first time on appeal as a manifest constitutional error. [4] See also State v. Mendoza-Solorio, 108 Wash.App. 823, 834-35 , 33 P.3d 411 (2001) (assuming, without deciding, that the facts raised a manifest constitutional error but

2007App. 823, 834-35 , 33 P.3d 411 (2001) (assuming, without deciding, that the facts raised a manifest constitutional error but finding error harmless). ¶57 In State v. Carlin, 40 Wn.