Kotteakos standard in District of Columbia

2023The government counters that because we are reviewing the court’s Jencks Act determination, which is at least superficially statutory, we ought to apply the harm standard applicable to non- constitutional errors, which demands reversal unless we can say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the [convictions were] not substantially swayed by the error.” See Kotteakos v. United States, 328 U.S. 750, 765 (1946). 32 We agree with the government that Jencks Act rulings are generally not of constitutional dimension, 4 so w

2023The government counters that because we are reviewing the court’s Jencks Act determination, which is at least superficially statutory, we ought to apply the harm standard applicable to non- constitutional errors, which demands reversal unless we can say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the [convictions were] not substantially swayed by the error.” See Kotteakos v. United States, 328 U.S. 750, 765 (1946). 32 We agree with the government that Jencks Act rulings are generally not of constitutional dimension, 4 so w

2023See Gardner v. United States, 140 A.3d 1172 , 1197 n.38 (D.C. 2016) (we address the cumulative effect of all the errors combined in determining whether to reverse).

2023See Gardner v. United States, 140 A.3d 1172 , 1197 n.38 (D.C. 2016) (we address the cumulative effect of all the errors combined in determining whether to reverse).

2023See Middleton v. United States, 401 A.2d 109 , 122 n.29 (D.C. 1979) (“[T]he statutory discovery principles of the Jencks Act are not to be considered constitutional dogma.”).

2023See Middleton v. United States, 401 A.2d 109 , 122 n.29 (D.C. 1979) (“[T]he statutory discovery principles of the Jencks Act are not to be considered constitutional dogma.”).

2022See Pérez v. United States, 968 A.2d 39 , 93 (D.C. 2009) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)) (stating that the “substantial rights” standard is “similar to the Kotteakos formulation,” except that “it is the defendant rather than the [g]overnment who bears the burden of persuasion with respect to prejudice” (brackets and internal quotation marks omitted)).

2022See Pérez v. United States, 968 A.2d 39 , 93 (D.C. 2009) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)) (stating that the “substantial rights” standard is “similar to the Kotteakos formulation,” except that “it is the defendant rather than the [g]overnment who bears the burden of persuasion with respect to prejudice” (brackets and internal quotation marks omitted)).

2022See Pérez v. United States, 968 A.2d 39 , 93 (D.C. 2009) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)) (stating that the “substantial rights” standard is “similar to the Kotteakos formulation,” except that “it is the defendant rather than the [g]overnment who bears the burden of persuasion with respect to prejudice” (brackets and internal quotation marks omitted)).

2022See Pérez v. United States, 968 A.2d 39 , 93 (D.C. 2009) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)) (stating that the “substantial rights” standard is “similar to the Kotteakos formulation,” except that “it is the defendant rather than the [g]overnment who bears the burden of persuasion with respect to prejudice” (brackets and internal quotation marks omitted)).

2011In other words, to conclude that an error is harmless under the Kotteakos standard, we "must find it highly probable that [that] error did not contribute to the verdict." Wilson-Bey v. United States, 903 A.2d 818, 844 (D.C.2006) (en banc) (internal quotation marks and citations omitted).

2011In other words, to conclude that an error is harmless under the Kotteakos standard, we "must find it highly probable that [that] error did not contribute to the verdict." Wilson-Bey v. United States, 903 A.2d 818, 844 (D.C.2006) (en banc) (internal quotation marks and citations omitted).

2007Compare Cox, 898 A.2d at 382 ; Henderson, 632 A.2d at 431 ; and United States v. Sutton, 255 U.S.App. *458 D.C. 307, 331, 801 F.2d 1346, 1370 (1986) (applying Kotteakos), with Henderson, 632 A.2d at 432 n. 36 and Reams, 895 A.2d at 923 (both suggesting that curtailment of the defendant’s right to cross-examine the officer regarding the exculpatory portion of the declarant’s statement may implicate Chapman ). 14 We need not decide whether Kotteakos or Chapman governs this appeal because, assuming, arguendo, that the Kotteakos standard applies, we are unable to say “with fair assurance, after po

2007Compare Cox, 898 A.2d at 382 ; Henderson, 632 A.2d at 431 ; and United States v. Sutton, 255 U.S.App. *458 D.C. 307, 331, 801 F.2d 1346, 1370 (1986) (applying Kotteakos), with Henderson, 632 A.2d at 432 n. 36 and Reams, 895 A.2d at 923 (both suggesting that curtailment of the defendant’s right to cross-examine the officer regarding the exculpatory portion of the declarant’s statement may implicate Chapman ). 14 We need not decide whether Kotteakos or Chapman governs this appeal because, assuming, arguendo, that the Kotteakos standard applies, we are unable to say “with fair assurance, after po

2001Even if we were to rule otherwise, however, such error would not be reversible under either the Kotteakos standard, see Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946), or the Chapman standard, see Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

2001Even if we were to rule otherwise, however, such error would not be reversible under either the Kotteakos standard, see Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946), or the Chapman standard, see Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

2012If the argument is improper, “and if [Mr. Harrison] made a timely objection, then we must determine whether the error was harmless under the familiar Kotteakos test.” Id.

2012If the argument is improper, “and if [Mr. Harrison] made a timely objection, then we must determine whether the error was harmless under the familiar Kotteakos test.” Id.

2007Compare Cox, 898 A.2d at 382 ; Henderson, 632 A.2d at 431 ; and United States v. Sutton, 255 U.S.App. *458 D.C. 307, 331, 801 F.2d 1346, 1370 (1986) (applying Kotteakos), with Henderson, 632 A.2d at 432 n. 36 and Reams, 895 A.2d at 923 (both suggesting that curtailment of the defendant’s right to cross-examine the officer regarding the exculpatory portion of the declarant’s statement may implicate Chapman ). 14 We need not decide whether Kotteakos or Chapman governs this appeal because, assuming, arguendo, that the Kotteakos standard applies, we are unable to say “with fair assurance, after po

2007Compare Cox, 898 A.2d at 382 ; Henderson, 632 A.2d at 431 ; and United States v. Sutton, 255 U.S.App. *458 D.C. 307, 331, 801 F.2d 1346, 1370 (1986) (applying Kotteakos), with Henderson, 632 A.2d at 432 n. 36 and Reams, 895 A.2d at 923 (both suggesting that curtailment of the defendant’s right to cross-examine the officer regarding the exculpatory portion of the declarant’s statement may implicate Chapman ). 14 We need not decide whether Kotteakos or Chapman governs this appeal because, assuming, arguendo, that the Kotteakos standard applies, we are unable to say “with fair assurance, after po

1993Compare Scull, 564 A.2d at 1166 (applying Chapman test in assessing denial of any opportunity to cross-examine key government witnesses for bias) and Bassil, 517 A.2d at 716-17 (applying Chapman test to exclusion of all defense testimony as to bad reputation of government witness for truth and veracity) with Roundtree v. United States, 581 A.2d 315 , 328 & 329 n. 34 (D.C.1990) (applying Kotteakos test to ruling excluding as irrelevant evidence concerning condition of alleged rape victim’s genitalia) and Parks v. United States, 451 A.2d 591 , 610 & n. 37 (D.C.1982) (applying Kotteakos test to e

1993Compare Scull, 564 A.2d at 1166 (applying Chapman test in assessing denial of any opportunity to cross-examine key government witnesses for bias) and Bassil, 517 A.2d at 716-17 (applying Chapman test to exclusion of all defense testimony as to bad reputation of government witness for truth and veracity) with Roundtree v. United States, 581 A.2d 315 , 328 & 329 n. 34 (D.C. 1990) (applying Kotteakos test to ruling excluding as irrelevant evidence concerning condition of alleged rape victim's genitalia) and Parks v. United States, 451 A.2d 591 , 610 & n. 37 (D.C.1982) (applying Kotteakos test to

2023P. 26(a)] was either justified or harmless . . . .”); Hinton v. United States, 979 A.2d 663, 686 (D.C. 2009) (en banc) (under Kotteakos test for harmlessness, burden of showing harmlessness “is on the beneficiary of an error”).

2022See Garcia v. United States, 848 A.2d 600, 602 (D.C. 2004) (applying Kotteakos standard of harmlessness to a claim that the prosecution presented insufficient evidence to support instructing the jury on involuntary manslaughter). 35 848 A.2d at 600 . 36 Id. at 602 . 20 were not persuaded that giving the instruction misled the jury.

2022See Garcia v. United States, 848 A.2d 600, 602 (D.C. 2004) (applying Kotteakos standard of harmlessness to a claim that the prosecution presented insufficient evidence to support instructing the jury on involuntary manslaughter). 35 848 A.2d at 600 . 36 Id. at 602 . 20 were not persuaded that giving the instruction misled the jury.

2019Wheeler v. United States , 930 A.2d 232 , 246 (D.C. 2007).

2019Wheeler v. United States , 930 A.2d 232 , 246 (D.C. 2007).

2019We ruled that the judge's ex parte response was error but applied the Kotteakos standard because we could not "say that at the time the trial court received the second deadlock note from the jury ... 'the presence of [Mr. Van Dyke was] a condition of due process to the extent that a fair and just hearing would [have] be[en] thwarted by his absence.' " 66 A.3d at 1007 (quoting Van Dyke, 27 A.3d at 1125 -26 (quoting United States v. Gagnon , 470 U.S. 522 , 526-27, 105 S.Ct. 1482 , 84 L.Ed.2d 486 (1985) )).

2019We ruled that the judge's ex parte response was error but applied the Kotteakos standard because we could not "say that at the time the trial court received the second deadlock note from the jury ... 'the presence of [Mr. Van Dyke was] a condition of due process to the extent that a fair and just hearing would [have] be[en] thwarted by his absence.' " 66 A.3d at 1007 (quoting Van Dyke, 27 A.3d at 1125 -26 (quoting United States v. Gagnon , 470 U.S. 522 , 526-27, 105 S.Ct. 1482 , 84 L.Ed.2d 486 (1985) )).

2017See Lazo v. United States, 930 A.2d 183, 189 (D.C. 2007) (citing Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)).

2017See Lazo v. United States, 930 A.2d 183, 189 (D.C. 2007) (citing Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946)).

2014The Fifth Circuit has declared that cumulative error of any kind "justifies reversal only when errors ‘so fatally infect the trial that they violated the trial’s fundamental fairness.' " United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (en banc) (citing United States v. Fields, 483 F.3d 313, 362 (5th Cir.2007)). 145 .

2014The Fifth Circuit has declared that cumulative error of any kind "justifies reversal only when errors ‘so fatally infect the trial that they violated the trial’s fundamental fairness.' " United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (en banc) (citing United States v. Fields, 483 F.3d 313, 362 (5th Cir.2007)). 145 .

2014See, e.g., United States v. Warman, 578 F.3d 320 , 349 n. 4 (6th Cir.2009) (finding it unnecessary to decide whether to consider harmless and plain errors "together or sepa *45 rately”); United States v. Baker, 432 F.3d 1189, 1224 (11th Cir.2005) (stating that "because the defendants did not preserve any of their constitutional evidentiary claims, we review the aggregate effect of the district court’s constitutional and non-constitutional errors under the Kotteakos standard for each defendant”); United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.2004) ("To the extent that we have foun

2014See, e.g., United States v. Warman, 578 F.3d 320 , 349 n. 4 (6th Cir.2009) (finding it unnecessary to decide whether to consider harmless and plain errors "together or sepa *45 rately”); United States v. Baker, 432 F.3d 1189, 1224 (11th Cir.2005) (stating that "because the defendants did not preserve any of their constitutional evidentiary claims, we review the aggregate effect of the district court’s constitutional and non-constitutional errors under the Kotteakos standard for each defendant”); United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.2004) ("To the extent that we have foun

2014Compare Scott, supra, 954 A.2d at 1047 (reviewing the instructional error under the Kotteakos standard), with Burris, supra, 797 N.W.2d at 442 (contending that a legally accurate instruction may in some instances "unconstitutionally” mislead the jury).

2014Compare Scott, supra, 954 A.2d at 1047 (reviewing the instructional error under the Kotteakos standard), with Burris, supra, 797 N.W.2d at 442 (contending that a legally accurate instruction may in some instances "unconstitutionally” mislead the jury).

2014See, e.g., United States v. Warman, 578 F.3d 320 , 349 n. 4 (6th Cir.2009) (finding it unnecessary to decide whether to consider harmless and plain errors "together or sepa *45 rately”); United States v. Baker, 432 F.3d 1189, 1224 (11th Cir.2005) (stating that "because the defendants did not preserve any of their constitutional evidentiary claims, we review the aggregate effect of the district court’s constitutional and non-constitutional errors under the Kotteakos standard for each defendant”); United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.2004) ("To the extent that we have foun

2014See, e.g., United States v. Warman, 578 F.3d 320 , 349 n. 4 (6th Cir.2009) (finding it unnecessary to decide whether to consider harmless and plain errors "together or sepa *45 rately”); United States v. Baker, 432 F.3d 1189, 1224 (11th Cir.2005) (stating that "because the defendants did not preserve any of their constitutional evidentiary claims, we review the aggregate effect of the district court’s constitutional and non-constitutional errors under the Kotteakos standard for each defendant”); United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.2004) ("To the extent that we have foun

2014Compare Scott, supra, 954 A.2d at 1047 (reviewing the instructional error under the Kotteakos standard), with Burris, supra, 797 N.W.2d at 442 (contending that a legally accurate instruction may in some instances "unconstitutionally” mislead the jury).

2014Compare Scott, supra, 954 A.2d at 1047 (reviewing the instructional error under the Kotteakos standard), with Burris, supra, 797 N.W.2d at 442 (contending that a legally accurate instruction may in some instances "unconstitutionally” mislead the jury).

2014See, e.g., United States v. Warman, 578 F.3d 320 , 349 n. 4 (6th Cir.2009) (finding it unnecessary to decide whether to consider harmless and plain errors "together or sepa *45 rately”); United States v. Baker, 432 F.3d 1189, 1224 (11th Cir.2005) (stating that "because the defendants did not preserve any of their constitutional evidentiary claims, we review the aggregate effect of the district court’s constitutional and non-constitutional errors under the Kotteakos standard for each defendant”); United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.2004) ("To the extent that we have foun

2014See, e.g., United States v. Warman, 578 F.3d 320 , 349 n. 4 (6th Cir.2009) (finding it unnecessary to decide whether to consider harmless and plain errors "together or sepa *45 rately”); United States v. Baker, 432 F.3d 1189, 1224 (11th Cir.2005) (stating that "because the defendants did not preserve any of their constitutional evidentiary claims, we review the aggregate effect of the district court’s constitutional and non-constitutional errors under the Kotteakos standard for each defendant”); United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.2004) ("To the extent that we have foun

2014The Fifth Circuit has declared that cumulative error of any kind "justifies reversal only when errors ‘so fatally infect the trial that they violated the trial’s fundamental fairness.' " United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (en banc) (citing United States v. Fields, 483 F.3d 313, 362 (5th Cir.2007)). 145 .

2014The Fifth Circuit has declared that cumulative error of any kind "justifies reversal only when errors ‘so fatally infect the trial that they violated the trial’s fundamental fairness.' " United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (en banc) (citing United States v. Fields, 483 F.3d 313, 362 (5th Cir.2007)). 145 .

2013See, e.g., Allen v. United States, 649 A.2d 548, 556-57 (D.C.1994); Winestock, 429 A.2d at 529 . .

2013See, e.g., Allen v. United States, 649 A.2d 548, 556-57 (D.C.1994); Winestock, 429 A.2d at 529 . .