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State v. Van Kirk9/6/2001
is an inquiry of whether the claimed error is categorized as "structural" error or "trial" error.
"Structural" error is that type of error that " ffects the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante (1991), 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331; LaMere, 48.
Such error is typically of constitutional dimensions, precedes the trial, and undermines the fairness of the entire trial proceeding. Because of its nature, it cannot be qualitatively or quantitatively weighed against the admissible evidence introduced at trial. 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.
Structural error is automatically reversible and requires no additional analysis or review. Examples of structural error include errors in the jury selection process (LaMere); total deprivation of the right to counsel (Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799); and lack of an impartial trial judge (Tumey v. Ohio (1927), 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed 749). See, generally, the discussion in LaMere, 23.
As opposed to "structural" error, "trial" error is that type of error that typically occurs during the presentation of a case to the jury. Such error is amenable to qualitative assessment by a reviewing court for prejudicial impact relative to the other evidence introduced at trial. Trial error is not presumptively prejudicial and therefore not automatically reversible, and is subject to review under our harmless error statute, § 46-20-701(1), MCA.
Thus, the first step in the inquiry is whether the error at issue is structural error or trial error. If structural, the inquiry ends and the verdict is reversed. If the error is the more typical "trial" error, then the analysis proceeds to the second step, which involves the determination of whether the error was harmless under the circumstances.
As a threshold matter, once a convicted person raises and establishes that the evidence in question was erroneously admitted and has alleged prejudice under the "reasonable possibility" test, it then becomes incumbent on the State to demonstrate that the error at issue was not prejudicial. We have previously held that the test of prejudicial error is whether there is a reasonable possibility that the inadmissible evidence might have contributed to a conviction. Gray, 207 Mont. at 268, 673 P.2d at 1266. It is how the State demonstrates that the error was not prejudicial that we address next.
Because our focus returns to the question of whether there was a reasonable possibility that the erroneously admitted evidence might have contributed to the conviction, it is time to abandon the use of the "overwhelming evidence" test in answering the question of whether an error is harmless. Such a subjective analysis of the volume of the evidence, geared as it is to quantity, simply does not adequately assess the qualitative impact of tainted evidence. Therefore, we overrule our previous decisions in McKenzie, Brodniak, and Fuhrmann to the extent that they applied the "overwhelming weight of the evidence" test in analyzing harmless error. We choose instead to utilize the "cumulative evidence" test in answering this inquiry. This test looks not to the quantitative effect of other admissible evidence, but rather to whether the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence proved. This test, applied by the United States Supreme Court in Harrington v. California
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