9-d-3 Types of Errors

9-D-3. Types of Errors

When appealing your conviction (see Part D(1)) or your sentence (see Part D(2)), you argue that the trial court allowed errors to take place. Some errors are considered so serious that they are always enough to justify the reversal of your judgment without the need to prove how they harmed you. Other errors have the potential to be serious enough to warrant reversal, but they do not necessarily justify reversal. The court analyzes these errors under the "harmless error test." This means that the court will not reverse or modify a judgment if the error is harmless. The court will decide that an error is harmless if the court believes you would have received the same conviction and/or sentence even if the error had not occurred.

Note that to appeal on the basis of most of these errors, even those that are always considered harmful when your appeal is evaluated, you must have "preserved" the error by objecting at trial. Some errors are not subject to this requirement, however. For information about the preservation requirement, see Part B(3).

(a) Errors That Are Always "Harmful"

Some errors are considered so harmful that their occurrence always means that you were denied a fair trial and are entitled to a new one. These errors have such a significant effect that they are themselves enough to justify reversal of your conviction.¹⁸⁷ For example, errors in which the court misstates the prosecution's burden of proof on an issue should result in reversal.¹⁸⁸ Other examples of errors justifying reversal include:

(1) You were deprived of your right to counsel,¹⁸⁹ which includes a denial of your right to a lawyer of your choosing,¹⁹⁰ or if you were represented only by a person pretending to be a lawyer;¹⁹¹

(2) You chose to represent yourself at trial but the court failed to inform you of the dangers of proceeding without a lawyer;¹⁹²

(3) You were denied your right to represent yourself;¹⁹³

(4) Your judge was biased;¹⁹⁴

(5) Your judge gave an incorrect instruction about reasonable doubt to the jury, in violation of your Fifth and Sixth Amendment rights;¹⁹⁵

(6) Your judge gave an instruction to the jury that defined two alternative reasons for conviction, one of which was legally erroneous, and the appellate court now cannot say with absolute certainty that the jury based its verdict on legally correct reasoning;¹⁹⁶

(7) You were denied your right to be present at certain stages of the trial;¹⁹⁷

(8) The prosecutor wrongly excluded potential jurors on the basis of their race or sex;¹⁹⁸

(9) A juror was improperly removed from the jury;¹⁹⁹

(10) Your judge was absent during part of your trial;²⁰⁰

(11) During the selection of jurors, your judge improperly denied your claim that a juror should not be included in the jury, and this refusal was based on the judge's incorrect conclusion that you or your lawyer were discriminating on the basis of race or gender;²⁰¹ or

(12) During the selection of jurors, your judge improperly denied your claim that a juror should not be included because the juror expressed doubt about his or her ability to decide the case fairly, and you or your lawyer eventually used up all of your challenges to the jury composition.²⁰²

Note that the questions of whether the harmless error test applies (as opposed to automatic reversal) and what standard to apply are issues evolving on both the state and federal levels.²⁰³ This means that you should research what law applies to your case.

(b) Errors That May be "Harmless"

If the error that occurred in your proceedings was not necessarily enough to warrant reversal of your judgment, the court will examine the error to the harmless error test. Once the court decides that the error occurred, it must decide if the error harmed you. If the court finds that your conviction had an error but the error did not impact your conviction (you would have been convicted and sentenced in the same way even if the error had not happened), then it will find that the error was "harmless." The specific test that New York appellate courts apply to determine whether an error is harmless depends on whether the error is a constitutional or non-constitutional error.

A non-constitutional legal error does not violate rights guaranteed by the U.S. Constitution or the New York State Constitution. Rather, these types of errors generally violate rights guaranteed by state statutes or common law. A non-constitutional legal error is harmful if (1) there was not overwhelming proof of...