Harmless Error in Court of Special Appeals Opinions, 2017 to 2020

By Erica Becker
Guest Contributor[*]

Maryland precedent indicates that in criminal cases, a significant majority of errors will not be deemed harmless on appeal. The burden is on the State to show errors are harmless, and that burden is quite high:

“Harmless error review is the standard of review most favorable to the defendant short of an automatic reversal.” Bellamy v. State, 403 Md. 308, 333, 941 A.2d 1107 (2008). When we have determined that the trial court erred in a criminal case, “reversal is required unless the error did not influence the verdict.” Id. at 332, 941 A.2d 1107 (citation omitted). “To say that an error did not contribute to the verdict is … to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.” Id. (citation omitted). In other words, reversal is required unless we find that the error was harmless. We have explained that an “error is harmless only if it did not play any role in the jury’s verdict.” Id. (emphasis added) (citation omitted). The State carries the burden of proving, beyond a reasonable doubt, that the error meets this high standard. Dionas v. State, 436 Md. 97, 108, 80 A.3d 1058 (2013) (citation omitted).

Porter v. State, 455 Md. 220, 234, 166 A.3d 1044, 1052 (2017).

However, a review Court of Special Appeals opinions from recent years indicates that in practice, errors are deemed harmless approximately half the time.

I reviewed reported and unreported criminal Court of Special Appeals opinions from 2017 through 2020 and divided them into three categories: 1) cases where the Court found error but deemed it harmless; 2) cases where the Court found error and deemed it not to be harmless (and, therefore, reversed); and 3) cases where the Court found error that could not be harmless as a matter of law (i.e., Rule 4-215 violations, failure to ask a mandatory voir dire question, etc.). Where an error could potentially be harmless (so, excluding 4-215(e) errors, etc.), the Court concluded that it was half the time (or, to be precise, 49% of the time). My findings are summarized in the below chart.

In conclusion, there are appears to be a tension between Maryland’s case law, which holds that errors will rarely be deemed harmless, and the manner in which harmless error is actually applied by the Court of Special Appeals; in practice, the Court deems almost half of errors to be harmless. It would appear that the case law needs to be reinvigorated.

[*] Erica Becker is a third-year law student at the University of Michigan Law School. She served as a summer law clerk with the Office of the Public Defender’s Appellate Division during the summer of 2020.