Maryland high court declines to strengthen legal standard for harmless error in criminal cases

Maryland’s top court reaffirmed the decades-old standard for determining whether a trial court’s error during a criminal case was harmless in an opinion issued late last week.

In doing so, the Court of Appeals declined to strengthen the oft-cited 1976 standard, which requires the state to prove beyond a reasonable doubt that a trial error did not contribute to the conviction.

“The standard this Court announced in 1976 in Dorsey remains the foundation of harmless error review in Maryland,” Judge Jonathan Biran wrote in the 40-page opinion.

The petitioner is a Montgomery County man who was convicted in 2019 of sexually abusing his adopted daughter when she was in elementary school.

His lawyers on the appeal, Justin Eisele and Mirriam Seddiq, argued that a video shown to jurors was inadmissible hearsay and that its inclusion at the trial influenced the verdict.

The lawyers also argued for a stricter test to determine whether the trial court’s error was harmless: the state should also be required to show that “other overwhelming and largely uncontroverted evidence” supported the conviction in addition to the improper evidence.

The Court of Appeals declined to adopt this standard and affirmed the less strenuous Dorsey standard, which has been cited over 800 times in Maryland appellate decisions, according to the opinion.

“The Dorsey standard safeguards a defendant’s right to a fair trial – not a perfect trial – while at the same time allowing prosecutors appropriate leeway to make legitimate arguments,” Biran wrote.

The court also upheld its standard of considering whether the evidence admitted in error was “cumulative of properly admitted evidence,” or corroborated by other permissible evidence shown to the jury.

The majority found that the error in the Montgomery County case, which involved showing the jury video of the child victim describing the sexual abuse to her grandmother, was harmless because the video repeated evidence that was established in other ways throughout the trial.

Jurors, for example, heard direct testimony from the victim, two other prior statements the girl had made to a doctor and a social worker, and DNA evidence that linked the suspect to a semen stain found near the victim’s bed.

The Court of Appeals concluded that the video shown to jurors constituted harmless error.

Two judges dissented from the opinion but agreed with the court’s decision to uphold the Dorsey standard. The judges instead disagreed that the video’s inclusion was harmless, and pointed to the state’s decision to emphasize the video during closing arguments.

“Clearly, the State hoped and intended that the video would contribute to a guilty verdict even though there was other evidence on which the jury could have convicted,” Judge Steven B. Gould wrote in the dissent. “Because I cannot fathom that the video did not have such an effect on at least one juror, I respectfully dissent.”

The Maryland Attorney General’s Office, which represented the state in the appeal, declined to comment. Eisele and Seddiq did not return a phone message seeking comment Tuesday.