State v. Perry -- Restatement of Appellate Standards of Review

The Supreme Court has changed the standards of review on appeal. In State v. Perry, issued July 8, 2010, the Court conducted an extensive review of fundamental error and harmless error in Idaho and reformulated the standards. Per Perry (which specifically is not to be applied retroactively):

On appeal, courts are to engage in the following analysis:

(1) If the alleged error was followed by a contemporaneous objection at trial, the appellate court will apply the Chapman harmless error test. Where the defendant meets the initial burden of showing that a violation occurred, the state then has the burden of demonstrating beyond a reasonable doubt that the constitutional violation did not contribute to the jury's verdict. There are 2 exceptions:

(a) Where the error is a structural defect, affecting the base structure of the trial to the point that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, the appellate court must automatically vacate and remand.

(b) Where the jury reached its verdict based upon an erroneous instruction, an appellate court shall generally vacate and remand. However, in the limited situation where the jury received proper instruction on all but one element of an offense, and where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the verdict would have been the same absent the error, the erroneous instruction is to be found harmless. On the other hand, if a rational jury could have found that the state failed to prove the omitted element then the appellate court must vacate and remand.

(2) If the alleged error was not followed by a contemporaneous objection, it may only be reviewed under the fundamental error doctrine -- which has been changed. Fundamental error review is now a three-prong test wherein the defendant bears the burden of persuading the appellate court that the error: (1) violated one or more of the defendant's unwaived constitutional rights; (2) plainly exists; and (3) was not harmless. In determining whether the error was harmless, the burden has been moved from the state to the defense. The defendant must prove beyond a reasonable doubt that the error affected the outcome of the trial.

Perry clarifies that the same standards of review apply to claims of prosecutorial misconduct as to all other trial errors.

Perry also addresses some other issues.

With regard to IRE 412 evidence, on appeal, the court will only look at the IRE 412 hearing. The court will not review the admissibility of evidence included in the IRE 412 notice, but not specifically included in the hearing argument.

The Court also clarified the definition of "sex crime" for purposes of IRE 412(e)(2) limiting it to false allegations concerning the defendant currently on trial. IRE 412(e)(2) does not apply to false allegations involving a perpetrator other than the defendant.

Regarding Perry's claims of prosecutorial misconduct, the Court held that it is misconduct for the prosecutor to elicit vouching testimony from witnesses, but that the misconduct does not violate any constitutional rights. Likewise, there is no excuse for a prosecutor referring to improperly elicited vouching evidence in closing, but again such misconduct does not amount to a constitutional violation.

http://www.isc.idaho.gov/opinions/new%20perry%20final%20opn%204.pdf