harmless error in Virginia

2026“Harmless error is a legislative mandate” that “‘puts a limitation on the powers of this court to reverse the judgment of the trial court.’” Commonwealth v. 6 This Court may assume without deciding an issue to decide the case on “the best and narrowest grounds.” Commonwealth v. White, 293 Va. 411, 419 (2017) (“[T]he doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” (quoting Swann, 290 Va. at 196 )).

2026See Commonwealth v. Swann, 290 Va. 194, 200 (2015) (“Code § 8.01-678 makes ‘harmless-error review required in all cases.’” (quoting Ferguson v. Commonwealth, 240 Va. ix , ix (1990))).5 For errors impacting a criminal defendant’s constitutional rights, “the harmless-error standard . . . ask[s] ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction[.]’” Commonwealth v. White, 293 Va. 411, 420-21 (2017) (quoting Chapman v. California, 386 U.S. 18, 23 (1967)).

2021To that end, this Court does not ask itself whether evidence in the record “amply supports the jury’s verdict[],” Cartera, 219 Va. at 519, because to do so would run the risk of conflating a harmless error analysis with a sufficiency of the evidence analysis, Hooker v. Commonwealth, 14 Va. App. 454, 458 (1992).

2016Harmless error analysis is not “simply a sufficiency of the evidence analysis.” Williams v. Commonwealth, 32 Va.App. 395, 400 , 528 S.E.2d 166, 169 (2000) (en banc) (quoting Hooker v. Commonwealth, 14 Va.App. 454, 458 , 418 S.E.2d 343, 345 (1992)).

2025The harmless-error doctrine is a legislative mandate2 and check on the “powers of this court to reverse the judgment of the trial court.” Walker v. Commonwealth, 144 Va. 648, 652 (1926).

2025The harmless-error doctrine is a legislative mandate1 and check on the “powers of this court to reverse the judgment of the trial court.” Walker v. Commonwealth, 144 Va. 648, 652 (1926).

2026“Under the doctrine of harmless error, we will affirm the circuit court’s judgment when we can conclude that the error at issue could not have affected the court’s result.” Id. (quoting Forbes v. Rapp, 269 Va. 374, 382 (2005)).

2026“Under the doctrine of harmless error, we will affirm the circuit court’s judgment when we can conclude that the error at issue could not have affected the court’s result.” Id. (quoting Forbes v. Rapp, 269 Va. 374, 382 (2005)).

2017"Under the harmless error doctrine, if there was 'a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed ... for any ... defect, imperfection, or omission in the record, or for any error committed on the trial.' " Id. (quoting Code § 8.01-678 ). "[W]e apply the standard for non-constitutional harmless error, which is that such error is harmless if we can be sure that it did not 'influence the jury' or had only a 'slight effect.' " Id. (quoting Clay v. Commonwealth , 262 Va. 253 , 260, 546 S.E.2d 728 , 731-32 (2001) ).

2017"Under the harmless error doctrine, if there was 'a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed ... for any ... defect, imperfection, or omission in the record, or for any error committed on the trial.' " Id. (quoting Code § 8.01-678 ). "[W]e apply the standard for non-constitutional harmless error, which is that such error is harmless if we can be sure that it did not 'influence the jury' or had only a 'slight effect.' " Id. (quoting Clay v. Commonwealth , 262 Va. 253 , 260, 546 S.E.2d 728 , 731-32 (2001) ).

2025The harmless-error doctrine is favored by our courts, as it “demands . . . common sense.” 2 “Harmless error is a legislative mandate, which has been part of our statutory law since the early 1900s, and limits the adjudicatory power of Virginia appellate courts.” White, 293 Va. at 419 . - 11 - Commonwealth v. Proffitt, 292 Va. 626, 641 (2016) (quoting Oliver v. Commonwealth, 151 Va. 533, 541 (1928)).

2025The harmless-error doctrine is favored by our courts, as it “demands . . . common sense.” Commonwealth v. Proffitt, 292 Va. 626, 641 (2016) (quoting Oliver v. Commonwealth, 151 Va. 533, 541 (1928)).

2015Assuming without deciding that the trial court abused its discretion by admitting the text mes *519 sages, 5 this Court nevertheless affirms the trial court’s judgment as harmless error. “ ‘No trial is perfect, and error will at times creep in.’ ” Lavinder v. Commonwealth, 12 Va.App. 1003, 1009 , 407 S.E.2d 910, 913 (1991) (quoting Parsons v. Commonwealth, 154 Va. 832, 852 , 152 S.E. 547, 554 (1930)). “ ‘Every man is entitled to a fair trial and to nothing more, and so ... out of the imperative demands of common sense, has grown the doctrine of harmless error.’ ” Id. (quoting Oliver v. Commonw

2015Assuming without deciding that the trial court abused its discretion by admitting the text mes *519 sages, 5 this Court nevertheless affirms the trial court’s judgment as harmless error. “ ‘No trial is perfect, and error will at times creep in.’ ” Lavinder v. Commonwealth, 12 Va.App. 1003, 1009 , 407 S.E.2d 910, 913 (1991) (quoting Parsons v. Commonwealth, 154 Va. 832, 852 , 152 S.E. 547, 554 (1930)). “ ‘Every man is entitled to a fair trial and to nothing more, and so ... out of the imperative demands of common sense, has grown the doctrine of harmless error.’ ” Id. (quoting Oliver v. Commonw

2023See Code § 8.01-678; see also Kirby v. Commonwealth, 50 Va. App. 691, 699 (2007) (noting that the harmless error doctrine is a legislative mandate explicitly limiting the power of appellate courts).

2023See Code § 8.01-678; see also Kirby v. Commonwealth, 50 Va. App. 691, 699 (2007) (noting that the harmless error doctrine is a legislative mandate explicitly limiting the power of appellate courts).

2026See Commonwealth v. Swann, 290 Va. 194, 200 (2015) (“Code § 8.01-678 makes ‘harmless-error review required in all cases.’” (quoting Ferguson v. Commonwealth, 240 Va. ix , ix (1990))).5 For errors impacting a criminal defendant’s constitutional rights, “the harmless-error standard . . . ask[s] ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction[.]’” Commonwealth v. White, 293 Va. 411, 420-21 (2017) (quoting Chapman v. California, 386 U.S. 18, 23 (1967)).

2025If the error involves a constitutional issue, “the harmless-error standard . . . ask[s] ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction[.]’” Id. at 420-21 (quoting Chapman v. California, 386 U.S. 18, 23 (1967)).

2016Code § 8.01-678 makes “harmless-error review required in all cases.” Ferguson v. Commonwealth, 240 Va. ix , ix, 396 S.E.2d 675, 675 (1990); see Walker v. Commonwealth, 144 Va. 648, 652 , 131 S.E. 230 , 231 - 10 - (1926) (holding that the harmless error statute “puts a limitation on the powers of this court to reverse the judgment of the trial court—a limitation which we must consider on every application for an appeal and on the hearing of every case submitted to our judgment”).

2015Nevertheless, Code § 8.01-678 makes "harmless-error review required in all cases." Ferguson v. Commonwealth, 240 Va. ix , ix, 396 S.E.2d 675 , 675 (1990) (emphasis in original); see Walker v. Commonwealth, 144 Va. 648 , 652, 131 S.E. 230 , 231 (1926) (holding that the harmless error statute "puts a limitation on the powers of this court to reverse the judgment of the trial court-a limitation which we must consider on every application for an appeal and on the hearing of every case submitted to our judgment"). 2 We have thus conducted a harmless error review under the non-constitutional standar

2025Important factors in the harmless error analysis in this context include “the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted,” and “the overall strength of the prosecution’s case.” Id. (quoting Van Arsdall, 475 U.S. at 684 ).

2024Important factors in the harmless error - 13 - analysis in this context include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted,” and “the overall strength of the prosecution’s case.” Id. (quoting Van Arsdall, 475 U.S. at 684 ).

2023“Constitutional error, like other types of error, remains subject to analysis under the doctrine of harmless error.” White, 293 Va. at 420 (quoting Foltz v. Commonwealth, 284 Va. 467 , 472 (2012)); see also Crawford v. Commonwealth, 281 Va. 84, 101 (2011) (applying harmless error review to violation of the Sixth Amendment’s Confrontation Clause).

2023“Constitutional error, like other types of error, remains subject to analysis under the doctrine of harmless error.” White, 293 Va. at 420 (quoting Foltz v. Commonwealth, 284 Va. 467 , 472 (2012)); see also Crawford v. Commonwealth, 281 Va. 84, 101 (2011) (applying harmless error review to violation of the Sixth Amendment’s Confrontation Clause).

2026“Harmless error is a legislative mandate” that “‘puts a limitation on the powers of this court to reverse the judgment of the trial court.’” Commonwealth v. 6 This Court may assume without deciding an issue to decide the case on “the best and narrowest grounds.” Commonwealth v. White, 293 Va. 411, 419 (2017) (“[T]he doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” (quoting Swann, 290 Va. at 196 )).

2026See Commonwealth v. Swann, 290 Va. 194, 200 (2015) (“Code § 8.01-678 makes ‘harmless-error review required in all cases.’” (quoting Ferguson v. Commonwealth, 240 Va. ix , ix (1990))).5 For errors impacting a criminal defendant’s constitutional rights, “the harmless-error standard . . . ask[s] ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction[.]’” Commonwealth v. White, 293 Va. 411, 420-21 (2017) (quoting Chapman v. California, 386 U.S. 18, 23 (1967)).

2026“The proper inquiry for constitutional harmless error is ‘whether the [jury] would have returned the same verdict absent the error.’” White, 293 Va. at 421 -22 (quoting Washington v. Recuenco, 548 U.S. 212, 221 (2006)). “[W]hether such an error is harmless in a particular case depends upon a host of factors,” including the “importance of the [tainted evidence] in the prosecution’s case, whether [that evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [tainted evidence] on material points . . . and . . . the overall strength of the prosecution’s cas

2026“The proper inquiry for constitutional harmless error is ‘whether the [jury] would have returned the same verdict absent the error.’” White, 293 Va. at 421 -22 (quoting Washington v. Recuenco, 548 U.S. 212, 221 (2006)). “[W]hether such an error is harmless in a particular case depends upon a host of factors,” including the “importance of the [tainted evidence] in the prosecution’s case, whether [that evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [tainted evidence] on material points . . . and . . . the overall strength of the prosecution’s cas

2026Under Code § 8.01-678, “no judgment shall be arrested or reversed” if “it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.” Even errors “arising from the denial of a constitutional right are subject to a harmless error analysis.” Angel v. Commonwealth, 281 Va. 248, 264 (2011).

2024In conducting a harmless error analysis, courts “typically” consider: “(1) the importance of the tainted evidence in the prosecutor’s case, (2) whether that evidence was cumulative, (3) whether there is evidence that corroborates or contradicts the tainted evidence on material points, and (4) the strength of the prosecution’s case as a whole.” Commonwealth v. White, 293 Va. 411 , 421 n.5 (2017) (quoting Angel v. Commonwealth, 281 Va. 248, 264 (2011)).

2015“Under the doctrine of harmless error, we will affirm the circuit court’s judgment when we can conclude that the error at issue could not have affected the [result].” King v. Cooley, 274 Va. 374, 379 , 650 S.E.2d 523, 526 (2007).

2015“Under the doctrine of harmless error, we will affirm the circuit court’s judgment when we can conclude that the error at issue could not have affected the [result].” King v. Cooley, 274 Va. 374, 379 , 650 S.E.2d 523, 526 (2007).

2023We must affirm if we are sure that “absent the [remark]” it is “clear beyond a reasonable doubt that the [factfinder] would have returned a verdict of guilty.” Commonwealth v. White, 293 Va. 411, 421 (2017) (quoting United States v. Hasting, 461 U.S. 499, 510-11 (1983)).4 4 We recite the harmless error standard that applies when the error complained of is constitutional, instead of the lower standard for non-constitutional errors, because Williams argues that the Commonwealth’s remark violated his due process right to a fair trial. -4- We will assume without deciding that the trial court erred

2017Consideration of statements obtained in violation of a suspect’s right to have counsel present during custodial interrogation is a constitutional error, but “[c]onstitutional error, like other types of error, remains subject to analysis under the doctrine of harmless error.” Id. at ___, 799 S.E.2d at 498 -99 (quoting Foltz v. Commonwealth, 284 Va. 467 , 472, 732 S.E.2d 4 , 7 (2012)).

2025“Harmless error consequently has been ‘deeply embedded in our jurisprudence.’” Id. (quoting Gilland v. Commonwealth, 184 Va. 223, 235 (1945)).

2017Harmless error consequently has been "deeply embedded in our jurisprudence." Gilland v. Commonwealth , 184 Va. 223 , 235, 35 S.E.2d 130 , 134 (1945).

2024“Under the harmless error doctrine, the judgment of the court below will be affirmed whenever we can say that the error complained of could not have affected the result.” Rhoades v. Painter, 234 Va. 20, 24 (1987) (emphasis added).

2024“Under the harmless error doctrine, the judgment of the court below will be affirmed whenever we can say that the error complained of could not have affected the result.” Rhoades v. Painter, 234 Va. 20, 24 (1987).

2019Harmless error is a legislative mandate,” which “the General Assembly [has] ‘deliberately engrafted’ . . . into the statutory law of the Commonwealth.” Commonwealth v. White, 293 Va. 411, 419-20 (2017) (quoting Irvine v. Carr, 163 Va. 662, 669 (1934)).

2019See Commonwealth v. White, 293 Va. 411, 419-20 (2017). “[T]he General Assembly ‘deliberately engrafted’ the harmless-error doctrine into the statutory law of the Commonwealth.” Id. at 420 (quoting Irvine v. Carr, 163 Va. 662, 669 (1934)); see Code § 8.01-678.

2005See, e.g., Greenway v. Commonwealth, 254 Va. 147, 154 , 487 S.E.2d 224, 228 (1997).3 “The harmless error doctrine ‘enables an appellate court . . . to ignore the effect of an erroneous ruling when an error clearly has had no impact upon the verdict or sentence in a case.’” Burley v. Commonwealth, 29 Va. App. 140, 149 , 510 S.E.2d 265, 269-70 (1999) (quoting Hackney v. Commonwealth, 28 Va. App. 288, 296 , 504 S.E.2d 385, 389 (1998) (en banc)).

2005See, e.g., Greenway v. Commonwealth, 254 Va. 147, 154 , 487 S.E.2d 224, 228 (1997).3 “The harmless error doctrine ‘enables an appellate court . . . to ignore the effect of an erroneous ruling when an error clearly has had no impact upon the verdict or sentence in a case.’” Burley v. Commonwealth, 29 Va. App. 140, 149 , 510 S.E.2d 265, 269-70 (1999) (quoting Hackney v. Commonwealth, 28 Va. App. 288, 296 , 504 S.E.2d 385, 389 (1998) (en banc)).

2025“Harmless error consequently has been ‘deeply embedded in our jurisprudence.’” Id. (quoting Gilland v. Commonwealth, 184 Va. 223, 235 (1945)).

2025The harmless-error doctrine is favored by our courts, as it “demands . . . common sense.” Commonwealth v. Proffitt, 292 Va. 626, 641 (2016) (quoting Oliver v. Commonwealth, 151 Va. 533, 541 (1928)).

2016A non-constitutional error is harmless if it is clear that the error “did not influence the [fact finder], or had but slight effect.” Schwartz v. Schwartz, 46 Va. App. 145, 159 , 616 S.E.2d 59, 66 (2005) (alteration in original) (quoting Clay v. Commonwealth, 262 Va. 253, 260 , 546 S.E.2d 728, 731 (2001)). “[R]elevant to the harmless error analysis is whether the evidence admitted in error is merely ‘cumulative’ of other, undisputed evidence.” Id. at 160, 616 S.E.2d at 67 (quoting Brecht v. Abrahamson, 507 U.S. 619, 639 (1993)). 3 As we find that husband did not breach the premarital agreement

2015A non-constitutional error such as this one is harmless if it is clear that the error “‘did not influence the [fact finder], or had but slight effect.’” Schwartz v. Schwartz, 46 Va. App. 145, 159 , 616 S.E.2d 59, 66 (2005) (alteration in original) (quoting Clay v. Commonwealth, 262 Va. 253, 260 , 546 S.E.2d 728, 731 (2001)). “[R]elevant to the harmless error analysis is whether the evidence admitted in error is -7- merely ‘cumulative’ of other, undisputed evidence.” Id. at 160, 616 S.E.2d at 67 (quoting Brecht v. Abrahamson, 507 U.S. 619, 639 (1993)).

1990Second, applying the same standard encourages the development of a “coherent doctrine of harmless error.” Id. at 407 , 383 A.2d at 163 .

1990Second, applying the same standard encourages the development of a “coherent doctrine of harmless error.” Id. at 407 , 383 A.2d at 163 .

2025“Under the harmless error doctrine, if there was ‘a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . for any . . . defect, imperfection, or omission in the record, or for any error committed on the trial.’” Shifflett, 289 Va. at 12 (alterations in original) (quoting Code § 8.01‑678). “[W]e apply the standard for non‑constitutional harmless error, which is that such error is harmless if we can be sure that it did not ‘influence the jury’ or had only a ‘slight effect.’” Carter, 293 Va. at 545 (alteration in original) (quoting Shif

2024“Under the harmless error doctrine, if there was ‘a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . for any . . . defect, imperfection, or omission in the record, or for any error committed on the trial.’” Shifflett, 289 Va. at 12 (alterations in original) (quoting Code § 8.01‑678). “[W]e apply the standard for non‑constitutional harmless error, which is that such error is harmless if we can be sure that it did not influence the jury or had only a slight effect.” Carter, 293 Va. at 545 (alteration in original) (quoting Shifflet

2025In other words, would a jury have convicted Zapata even if the assault and battery instruction was given? “[W]here it is impossible to determine from the verdict whether the jury would have necessarily rejected a [lesser-included offense] on which it was not instructed, error in refusing to instruct on that [offense] is not harmless.” Lienau, 69 Va. App. at 270 . “[D]etermining the credibility of the witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and see them as they testify.” Maldonado v. Commonwealth, 70 V

2023If “the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand.” Lienau v. Commonwealth, 69 Va. App. 254, 270 (2018) (quoting Clay v. Commonwealth, 262 Va. 253, 260 (2001)).

2025“The harmless error standard” regarding constitutional error asks: “Is it clear beyond a reasonable doubt that a rational [factfinder] would have found the defendant guilty absent the error?” Commonwealth v. White, 293 Va. 411, 422 (2017) (alteration in original) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).

2025A harmless error analysis asks whether the evidence supports “that a rational [factfinder] would have found the defendant guilty absent the error.” Commonwealth v. White, 293 Va. 411, 422-23 (2017) (alteration in original) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).

2014We cannot say the court abused its discretion in making this finding.5 By allowing the jury to consider the factual basis for the condemnation, but excluding any mention of condemnation, the trial court eliminated the possibility that the jury would have speculated that there must have been some 5 Our holding moots the necessity to address Code § 8.01-678, which makes “harmless- error review required in all cases.” Ferguson v. Commonwealth, 240 Va. ix , ix, 396 S.E.2d 675, 675 (1990) (emphasis in original and text in parenthetical to statutory citation); see also Walker v. Commonwealth, 144 Va

2014We cannot say the court abused its discretion in making this finding.5 By allowing the jury to consider the factual basis for the condemnation, but excluding any mention of condemnation, the trial court eliminated the possibility that the jury would have speculated that there must have been some 5 Our holding moots the necessity to address Code § 8.01-678, which makes “harmless- error review required in all cases.” Ferguson v. Commonwealth, 240 Va. ix , ix, 396 S.E.2d 675, 675 (1990) (emphasis in original and text in parenthetical to statutory citation); see also Walker v. Commonwealth, 144 Va

2025Important factors in the harmless error analysis in this context include “the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted,” and “the overall strength of the prosecution’s case.” Id. (quoting Van Arsdall, 475 U.S. at 684 ).

2024Important factors in the harmless error - 13 - analysis in this context include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted,” and “the overall strength of the prosecution’s case.” Id. (quoting Van Arsdall, 475 U.S. at 684 ).