harmless error in Colorado

2025Under the harmless error standard of reversal, reversal is required only if the error “substantially influenced the verdict or affected the fairness of the trial proceedings.” Id. at ¶ 12 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)). ¶ 60 We review the unpreserved claims for plain error.

2025Yusem v. People, 210 P.3d 458 , 463 (Colo. 2009). ¶ 18 We apply the harmless error standard to preserved claims of error and reverse only for errors that “substantially influenced the 8 verdict or affected the fairness of the trial proceedings.” Hagos v. People, 2012 CO 63 , ¶ 12 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)). ¶ 19 We reverse unpreserved claims for plain error.

2025See McDonald, ¶ 55 (“Where an error exists and ‘a defendant . . . object[s] to an instruction, a harmless error standard applies.’” (quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001))).

2025That is where I turn next. ¶ 125 “Under a harmless error standard, reversal is required unless the error does not affect substantial rights of the defendant.” Id. (quoting Garcia, 28 P.3d at 344 ).

2026Under the harmless error standard, “we will disregard the error unless it ‘substantially influenced the verdict or affected the fairness of the trial proceedings.’” Id. (quoting Hagos v. People, 2012 CO 63, ¶ 12 ).

2026Id.; Oliver, ¶ 7. ¶ 25 If the error is preserved by objection, we review it under the harmless error standard and will reverse only “if the error ‘substantially influenced the verdict or affected the fairness of the trial proceedings.’” Hagos v. People, 2012 CO 63, ¶ 12 (citation omitted).

2026“In deference to the trial court’s discretion, we must assume the maximum probative value and the minimum unfair prejudice to be given the evidence.” Yusem v. People, 210 P.3d 458, 467 (Colo. 2009). ¶ 16 We review preserved errors in the admission of evidence under the harmless error standard.

2025Yusem v. People, 210 P.3d 458 , 463 (Colo. 2009). ¶ 18 We apply the harmless error standard to preserved claims of error and reverse only for errors that “substantially influenced the 8 verdict or affected the fairness of the trial proceedings.” Hagos v. People, 2012 CO 63 , ¶ 12 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)). ¶ 19 We reverse unpreserved claims for plain error.

2025See Pernell v. People, 2018 CO 13 , ¶ 25 16 (“[T]he strength of the properly admitted evidence supporting the guilty verdict is clearly an ‘important consideration’ in the harmless error analysis.” (quoting Crider v. People, 186 P.3d 39, 43 (Colo. 2008))). ¶ 38 Moreover, the jury returned a split verdict, acquitting Vialpando of attempted murder while convicting him of first degree assault.

2022Any Error was Harmless ¶ 31 On harmless error review, we only “reverse the judgment of conviction if there is a reasonable probability that any error by the trial court contributed to [the defendant’s] conviction.” People v. Monroe, 2020 CO 67, ¶ 17 . “[T]he strength of the properly admitted evidence supporting the guilty verdict is clearly an ‘important consideration’ in the harmless error analysis.” Pernell v. People, 9 2018 CO 13, ¶ 25 (quoting Crider v. People, 186 P.3d 39, 43 (Colo. 2008)). ¶ 32 Washington argues that any error under Crim.

2024Compare Griego v. People, 19 P.3d 1, 7 (Colo. 2001) (preserved allegation of instructional error regarding an element of an offense is an “error of constitutional magnitude” and is reviewed under the constitutional harmless error standard), with People v. Garcia, 28 P.3d 340, 344 (Colo. 2001) (preserved allegations of instructional error that are not errors of “constitutional dimension” are reviewed under the harmless error standard (quoting Salcedo v. People, 999 P.2d 833, 841 (Colo. 2000))).

2020These errors “are not amenable to either a harmless error or a plain error analysis.” Id. (quoting Griego v. People, 19 P.3d 1, 7 (Colo. 2001)).

2009See Griego, 19 P.3d at 7 (structural errors are not amenable to plain error review); Bogdanov v. People, 941 P.2d 247, 252-53 (Colo.1997) ("Structural errors are not amenable to either a harmless error or a plain error analysis because such errors affect 'the framework within which the trial proceeds, and are not errors in the trial process itself" (quoting Fulminante, 499 U.S. at 310 , 111 S.Ct. 1246 )), overruled on other grounds by Griego, 19 P.3d at 7-8 ; People v. Jimenez, 217 P.3d 841, 868 (Colo.App.2008) ("If an error is structural, it is not susceptible of harmless error or plain error

2009See Griego, 19 P.3d at 7 (structural errors are not amenable to plain error review); Bogdanov v. People, 941 P.2d 247, 252-53 (Colo.1997) ("Structural errors are not amenable to either a harmless error or a plain error analysis because such errors affect `the framework within which the trial proceeds,' and are not errors in the trial process itself." (quoting Fulminante, 499 U.S. at 310 , 111 S.Ct. 1246 )), overruled on other grounds by Griego, 19 P.3d at 7-8 ; People v. Jimenez, 217 P.3d 841, 868 (Colo. App.2008) ("If an error is structural, it is not susceptible of harmless error or plain er

2026In this case, we decide only the latter question. 23 obtain under [the harmless error standard] than under the constitutional harmless error standard because this standard requires that the error impair the reliability of the judgment of conviction to a greater degree than the constitutional harmless error standard requires.” (citing Krutsinger v. People, 219 P.3d 1054, 1058 (Colo. 2009)).

2012Satisfaction of this standard is more difficult than reversal under the harmless error standard because this standard requires that the error impair the reliability of the judgment of conviction to a greater degree than the harmless error standard requires. 3 Krutsinger, 219 P.3d at 1060 (citing Kyles v. Whitley, 514 U.S. 419, 436 , 115 S.Ct. 1555 , 1831 L.Ed.2d 490 (1995)). 114 Finally, we review all other errors, constitutional and nonconstitutional, that were not preserved by objection for plain error.

2025See C.R.C.P. 61; Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (a harmless error doesn’t affect a party’s substantial rights because it 40 neither substantially influences the outcome of the case nor impairs the basic fairness of a trial and is therefore not grounds for reversal). ¶ 89 Because we’ve concluded that the court’s dismissal of Layton’s claims for fraud, contractual interference, and promissory estoppel as to Landau was appropriate on alternate grounds, any error by the court in also dismissing those claims based on issue preclusion and laches was harmless. ¶ 90 Conversely, because t

2019And, an error affects a substantial right only if “it can be said with fair assurance that the error substantially influenced the outcome of the case or impaired the basic fairness of the trial itself.” Bly v. Story, 241 P.3d 529, 535 (Colo. 2010) (emphasis added) (citation omitted); see C.R.C.P. 61. ¶ 23 When applying the harmless error standard to an error in jury selection, “[w]hile the strength of the evidence supporting a verdict is often an important consideration, so too is the specific nature of the error in question and the nature of the prejudice or risk of 11 prejudice associated wi

2021Reversal under plain error is required only if the error was obvious and substantial, and "so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction." Id. at ¶ 14 ( quoting People v. Miller , 113 P.3d 743, 750 ( Colo. 2005 ) ) .

2017But to reverse we must be convinced “not only that the instructions affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to the conviction.” People v. Chase, 2013 COA 27 , ¶ 59 (citing Miller, 113 P.3d at 750 ); cf. People v. Casias, 2012 COA 117, ¶ 55 (“[A]n appellate court is authorized to disregard a harmless error even when a harmless 28 error argument has not been made in the briefs.” (citing United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir. 1991))). ¶ 52 We assess prejudice by looking at the record as a whole, includin

2019Structural errors “are not amenable to either a harmless error or a plain error analysis because such errors affect ‘the framework within which the trial proceeds,’ and are not errors in the trial process itself.” Griego v. People, 19 P.3d 1, 7 (Colo. 2001) (quoting Bogdanov v. People, 941 P.2d 247, 252-53 (Colo. 1997)).

2014Structural errors, by contrast, "are not amenable to either a harmless error or a plain error analysis because such errors affect 'the framework within which the trial proceeds," and are not errors in the trial process itself." Griego, 19 P.3d at 7 (quoting Bogdanov v. People, 941 P.2d 247, 252-53 (Colo.1997)).

2014P. 52(a) similarly to the almost identical harmless-error standard of Fed.R.Crim.P. 52(a), we have, in the past, sometimes applied an outcome-determinative approach to the question whether an error affected the defendant's substantial rights, see, eg., People v. Quintana, 665 P.2d 605, 612 (Colo.1983) (" [TJhe appropriate question is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings."), and sometimes merely categorized the affected right as "substantial" based on the significance of the right itself, see, eg., Macrander, 828 P.2d at 244 ;

2006People v. Quintana, 665 P.2d 605, 612 (Colo.1983).

2017II. ¶ 11 In Mata-Medina v. People, 71 P.3d 973, 980 (Colo. 2003), we squarely rejected the contention that the harmless constitutional error standard should apply to the erroneous denial of a requested lesser-offense instruction, relying in part on jurisprudence of the United States Supreme Court .withholding judgment on that question except where the error “forces the jury into an all-or-nothing decision between capital murder and innocence.” Instead, we held that “[w]hen the trial court errs - in failing to give a jury instruction that the defendant requested and to which he was entitled, th

2017II. ¶ 11 In Mata-Medina v. People, 71 P.3d 973, 980 (Colo. 2003), we squarely rejected the contention that the harmless constitutional error standard should apply to the erroneous denial of a requested lesser-offense instruction, relying in part on jurisprudence of the United States Supreme Court .withholding judgment on that question except where the error “forces the jury into an all-or-nothing decision between capital murder and innocence.” Instead, we held that “[w]hen the trial court errs - in failing to give a jury instruction that the defendant requested and to which he was entitled, th

2017Yusem v. People , 210 P.3d 458 , 469 (Colo. 2009). ¶ 41 "The proper inquiry in determining a harmless error question is not whether there was sufficient evidence to support the verdict without the improperly admitted evidence, but, rather, whether the error substantially influenced the verdict or affected the fairness of the trial proceedings." People v. Gaffney , 769 P.2d 1081 , 1088 (Colo. 1989). ¶ 42 The Kohl's evidence could not have substantially influenced the verdict because of the overwhelming evidence of Buell's guilt of the charged offenses.

2015People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989); see also Clark, 96 A.3d at 907 ("[In a harmless error analysis, the issue is not what evidence was available to the jury, but rather what evidence the jury, in fact, used to reach its verdict.") (citation omitted). 1 44 We conclude that the error was harm-legs, The "no coriclusion" results were presented during testimony that also included Ms. Berdine's conclusions that Mr. Marks was a match to the DNA found on the T-shirt and. was included as a possible contributor (with accompanying statistical data) to the DNA obtained from the hooded swes

2012See Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993) ("The harmless error rule applies to judicial review of administrative proceedings, and errors in such administrative proceedings will not require reversal unless [pllaintiffis can show they were prejudiced."); accord Sheep Mountain Alliance v. Bd. of County Comm'rs, 271 P.3d 597, 606 (Colo.App.2011).

2011"The harmless error rule applies to judicial review of administrative proceedings, and errors in such administrative proceedings will not require reversal unless [pllaintiffs can show they were prejudiced." Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993); accord New Mexico ex rel.

2019Id. ¶ 36 We need not determine whether the ordinary harmless error standard of reversal or the constitutional harmless error standard applies here because, for four reasons, we conclude that under the more stringent harmless error standard, reversal is required.

2011Chapman v. California, 386 U.S. 18, 24-25 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), which addressed the harmless error test for preserved constitutional errors, was issued twenty-one years later.

2012Neder v. United States , 527 U.S. 1 , 8 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 ( 1999 ) ; Blecha v. People , 962 P.2d 931, 942 ( Colo. 1998 ) .

2012Neder v. United States, 527 U.S. 1, 8 , 119 S.Ct., 1827 , 144 L.Ed.2d 35 (1999); Blecha v. People, 962 P.2d 931, 942 (Colo.1998).

2025See Pernell v. People, 2018 CO 13 , ¶ 25 16 (“[T]he strength of the properly admitted evidence supporting the guilty verdict is clearly an ‘important consideration’ in the harmless error analysis.” (quoting Crider v. People, 186 P.3d 39, 43 (Colo. 2008))). ¶ 38 Moreover, the jury returned a split verdict, acquitting Vialpando of attempted murder while convicting him of first degree assault.

2022Any Error was Harmless ¶ 31 On harmless error review, we only “reverse the judgment of conviction if there is a reasonable probability that any error by the trial court contributed to [the defendant’s] conviction.” People v. Monroe, 2020 CO 67, ¶ 17 . “[T]he strength of the properly admitted evidence supporting the guilty verdict is clearly an ‘important consideration’ in the harmless error analysis.” Pernell v. People, 9 2018 CO 13, ¶ 25 (quoting Crider v. People, 186 P.3d 39, 43 (Colo. 2008)). ¶ 32 Washington argues that any error under Crim.

2025The harmless error analysis asks “whether, viewing the evidence as a whole, the contested evidence substantially influenced the verdict or affected the fairness of the trial proceedings.” Id.

2024See People v. Summitt, 132 P.3d 320, 327 (Colo. 2006) (Harmless error analysis “requires an inquiry into whether, viewing the evidence as a whole, the contested evidence substantially influenced the verdict or affected the fairness of the trial proceedings.”).

2026Stewart, 55 P.3d at 124 . ¶ 75 We review preserved claims of error under the harmless error standard.

2021People v. Stewart, 55 P.3d 107, 124 (Colo. 2002).

2026See Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010); People v. Licona-Ortega, 2022 COA 27 , ¶¶ 87-88.

2026See Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010); People v. Licona-Ortega, 2022 COA 27 , ¶ 86.

2017Under the harmless error standard, we will not overturn the jury’s guilty verdict unless (1) the record shows that the erroneous ruling substantially influenced the jury’s verdict or affected the fairness of Jefferson’s trial, see Hagos, ¶ 12, 288 P.3d at 119, or (2) we are left with grave doubt as to the ruling’s effect, see Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946) (explaining that an error cannot be harmless if, among other things, “after pondering all that happened without stripping the erroneous action from the whole,” the court “is left in grave

2017Under the harmless error standard, we will not overturn the jury’s guilty verdict unless (1) the record shows that the erroneous ruling substantially influenced the jury’s verdict or affected the fairness of Jefferson’s trial, see Hagos, ¶ 12, 288 P.3d at 119, or (2) we are left with grave doubt as to the ruling’s effect, see Kotteakos v. United States, 328 U.S. 750, 765 (1946) (explaining that an error cannot be harmless if, among other things, “after pondering all that happened without stripping the erroneous action from the whole,” the court “is left in grave doubt” as to whether the error

2015Structural errors "are not amenable to either a harmless error or a plain error analysis because such errors affect the framework within which the trial proceeds, and are not errors in the trial process itself," Griego v. People, 19 P.3d 1, 7 (Colo.2001) (internal quotation marks omitted); accord Gonzalez-Lopez, 548 U.S. at 148 , 126 S.Ct. 2557 .

2015Structural errors "are not amenable to either a harmless error or a plain error analysis because such errors affect the framework within which the trial proceeds, and are not errors in the trial process itself," Griego v. People, 19 P.3d 1, 7 (Colo.2001) (internal quotation marks omitted); accord Gonzalez-Lopez, 548 U.S. at 148 , 126 S.Ct. 2557 .

2002"The harmless error rule is an obvious recognition of the fact that `[a] perfect trial is an impossibility and minor mistakes will inevitably occur.'" People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (quoting Callis v. People, 692 P.2d 1045, 1053 (Colo.1984)).

2002"The proper inquiry in determining a harmless error question is *1003 not whether there was sufficient evidence to support the verdict without the improperly admitted evidence, but, rather, whether the error substantially influenced the verdict or affected the fairness of the trial proceedings." Id.; accord Callis, 692 P.2d at 1053 .