Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 20. APPEALS · Part 7. Action by Court
Montana Code Annotated

Mont. Code Ann. § 46-20-701 (2026)

Elements Of Record Court Considers On Review -- Errors Noticed

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 20
  4. Part 7
  5. 46-20-701 Elements of record court considers on review -- errors noticed

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 20. APPEALS

Part 7. Action by Court

Elements Of Record Court Considers On Review -- Errors Noticed

46-20-701. Elements of record court considers on review -- errors noticed. (1) Whenever the record on appeal contains any order, ruling, or proceeding of the trial court against the convicted person affecting the convicted person's substantial rights on the appeal of the cause, together with any required objection of the convicted person, the supreme court on that appeal shall consider the orders, rulings, or proceedings and the objections thereto and shall reverse or affirm the cause on the appeal according to the substantial rights of the respective parties, as shown upon the record. A cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.

(2) Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104, unless the convicted person establishes that the error was prejudicial as to the convicted person's guilt or punishment and that:

(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;

(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the convicted person or the convicted person's attorney that prevented the claim from being raised and disposed of; or

(c) material and controlling facts upon which the claim is predicated were not known to the convicted person or the convicted person's attorney and could not have been ascertained by the exercise of reasonable diligence.

History: (1)En. 95-2412 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-2412; (2)En. 95-2425 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-2425; amd. Sec. 2, Ch. 319, L. 1983; Sec. 46-20-702, MCA 1985; redes. 46-20-701(2) by Code Commissioner, 1987; amd. Sec. 202, Ch. 42, L. 1997.

Notes of Decisions
Cited in 343 cases (28 in the last 5 years), 1980–2026 · leading case: State v. Finley, 915 P.2d 208 (Mont. 1996).
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State v. Finley, 915 P.2d 208 (Mont. 1996). · cites it 88× “] Section 46-20-701, MCA, was originally enacted in 1967, by the Montana Legislature, as a statutory exception to the legislative mandate that errors not objected to at trial would not be considered on appeal.”
State v. LaMere, 2000 MT 45 (Mont. 2000). · cites it 92× “In so doing, we accepted the State's contention that under Montana's harmless error statute, § 46-20-701, MCA, the failure to properly summon jurors had not prejudiced the defendant's right to a fair and impartial jury.”
State v. Reichmand, 2010 MT 228 (Mont. 2010). · cites it 40× “Section 46-20-701, MCA. The warrantless electronic surveillance evidence used at Reichmand's trial was subject to suppression under Goetz.”
State v. Arlington, 875 P.2d 307 (Mont. 1994). · cites it 25× “Exceptions to this rule are provided by § 46-20-701, MCA, discussed above. The witness’ testimony at issue here does not fall under any of the exceptions allowed under § 46-20-701, MCA.”
State v. Weaver, 1998 MT 167 (Mont. 1998). · cites it 24× “Suffice it to say that the Court oversteps its bounds under the separation of powers on which our three-branch government rests when it continues to ignore § 46-20-701, MCA, a statute duly enacted by the Montana Legislature.”
State v. West, 2008 MT 338 (Mont. 2008). · cites it 16× “The Legislature, for instance, has authorized review of a belatedly raised claim if "the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application"; if "the prosecutor, the judge, or a law enforcement agency…”
State v. Maier, 1999 MT 51 (Mont. 1999). · cites it 32× “Compare § 46-20-701(1), MCA, (providing that "[a] cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial"). We hold that the District Court's admission of Detective Hollis'…”
State v. Taylor, 2010 MT 94 (Mont. 2010). · cites it 12× “Therefore, we may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights even if the defendant did not timely object in the trial court, and notwithstanding constraints on appellate review set forth in § 46-20-701(2), MCA.”
State v. Ellison, 2012 MT 50 (Mont. 2012). · cites it 13× “¶11 On the other hand, § 46-20-701(2), MCA, which provides for statutory plain error review, governs claims that arise on appeal due to suppression of evidence and newly discovered facts or rights.”
State v. Spang, 2002 MT 120 (Mont. 2002). · cites it 18× “Structural error is automatically reversible and is not subject to harmless error review under § 46-20-701, MCA. Van Kirk , ¶¶ 38-39. ¶ 29 In contrast, trial error typically occurs during the presentation of a case to the jury.”
State v. Tapson, 2001 MT 292 (Mont. 2001). · cites it 12× “In addressing this constitutional issue, the Court acknowledged that the matter was governed by § 46-20-104, MCA, and § 46-20-701, MCA, which requires that "[a] claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged…”
State v. Van Kirk, 2001 MT 184 (Mont. 2001). · cites it 7× “Structural error is presumptively prejudicial and is not subject to harmless error review jurisprudentially or under our harmless error statute found at § 46-20-701, MCA. LaMere , ¶ 50. ¶39 Structural error is automatically reversible and requires no additional analysis or…”
Show all 343 citing cases →
— Mont. Code Ann. § 46-20-701(1) — 112 cases
State v. LaMere, 2000 MT 45 (Mont. 2000). “In so doing, we accepted the State's contention that under Montana's harmless error statute, § 46-20-701, MCA, the failure to properly summon jurors had not prejudiced the defendant's right to a fair and impartial jury.”
State v. Matt, 2008 MT 444 (Mont. 2008).
State v. Kaarma, 2017 MT 24 (Mont. 2017).
State v. Spang, 2002 MT 120 (Mont. 2002). “Structural error is automatically reversible and is not subject to harmless error review under § 46-20-701, MCA. Van Kirk , ¶¶ 38-39. ¶ 29 In contrast, trial error typically occurs during the presentation of a case to the jury.”
State v. Good, 2002 MT 59 (Mont. 2002).
— Mont. Code Ann. § 46-20-701(2) — 161 cases
State v. Finley, 915 P.2d 208 (Mont. 1996). “] Section 46-20-701, MCA, was originally enacted in 1967, by the Montana Legislature, as a statutory exception to the legislative mandate that errors not objected to at trial would not be considered on appeal.”
State v. West, 2008 MT 338 (Mont. 2008). “The Legislature, for instance, has authorized review of a belatedly raised claim if "the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application"; if "the prosecutor, the judge, or a law enforcement agency…”
State v. Arlington, 875 P.2d 307 (Mont. 1994). “Exceptions to this rule are provided by § 46-20-701, MCA, discussed above. The witness’ testimony at issue here does not fall under any of the exceptions allowed under § 46-20-701, MCA.”
State v. Maier, 1999 MT 51 (Mont. 1999). “Compare § 46-20-701(1), MCA, (providing that "[a] cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial"). We hold that the District Court's admission of Detective Hollis'…”
State v. Taylor, 2010 MT 94 (Mont. 2010). “Therefore, we may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights even if the defendant did not timely object in the trial court, and notwithstanding constraints on appellate review set forth in § 46-20-701(2), MCA.”
— Mont. Code Ann. § 46-20-701(2)(a) — 7 cases
State v. Reichmand, 2010 MT 228 (Mont. 2010). “Section 46-20-701, MCA. The warrantless electronic surveillance evidence used at Reichmand's trial was subject to suppression under Goetz.”
State v. Finley, 915 P.2d 208 (Mont. 1996). “] Section 46-20-701, MCA, was originally enacted in 1967, by the Montana Legislature, as a statutory exception to the legislative mandate that errors not objected to at trial would not be considered on appeal.”
State v. Arlington, 875 P.2d 307 (Mont. 1994). “Exceptions to this rule are provided by § 46-20-701, MCA, discussed above. The witness’ testimony at issue here does not fall under any of the exceptions allowed under § 46-20-701, MCA.”
State v. Rodgers, 849 P.2d 1028 (Mont. 1993).
State v. Nolan, 2003 MT 13 (Mont. 2003).
— Mont. Code Ann. § 46-20-701(2)(a)(b) — 1 case
State v. Swoboda, 918 P.2d 296 (Mont. 1996).
— Mont. Code Ann. § 46-20-701(2)(b) — 3 cases
State v. Ellison, 2012 MT 50 (Mont. 2012). “¶11 On the other hand, § 46-20-701(2), MCA, which provides for statutory plain error review, governs claims that arise on appeal due to suppression of evidence and newly discovered facts or rights.”
State v. Weisbarth, 2016 MT 214 (Mont. 2016).
State v. Arlington, 875 P.2d 307 (Mont. 1994). “Exceptions to this rule are provided by § 46-20-701, MCA, discussed above. The witness’ testimony at issue here does not fall under any of the exceptions allowed under § 46-20-701, MCA.”
— Mont. Code Ann. § 46-20-701(2)(c) — 2 cases
State v. Hagen, 939 P.2d 994 (Mont. 1997).
State v. Brooks, 2000 MT 29N (Mont. 2000).
— Mont. Code Ann. § 46-20-701(Z) — 1 case
State v. McLaughlin (Mont. 1995).
— Mont. Code Ann. § 46-20-701(l) — 1 case
State v. Martin (Mont. 1995).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.