Court Explicated the Application of Harmless Error Doctrine to a Comment on Defendant's Right to Remain Silent
In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the court fully explicated the application of the harmless error doctrine to a comment on a defendant's right to remain silent.
In doing so, we explicitly expressed that the harmless error analysis is not an "overwhelming-evidence test." DiGuilio, 491 So. 2d at 1139.
Harmless error analysis must not become a device whereby the appellate court substitutes itself for the jury, examines the permissible evidence, excludes the impermissible evidence, and determines that the evidence of guilt is sufficient or even overwhelming based on the permissible evidence. . . .
Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached, for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result.
The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.
Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict. . . .
. . . the test must be conscientiously applied and the reasoning of the court set forth for the guidance of all concerned and for the benefit of further appellate review.
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.
The focus is on the effect of the error on the trier-of-fact.
The question is whether there is a reasonable possibility that the error affected the verdict.
The burden to show the error was harmless must remain on the state.
If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. DiGuilio, 491 So. 2d at 1136, 1138-39 (quoting People v. Ross, 67 Cal. 2d 64, 60 Cal. Rptr. 254, 429 P.2d 606, 621 (Cal. 1967) (Traynor, C.J., dissenting), rev'd, 391 U.S. 470, 88 S. Ct. 1850, 20 L. Ed. 2d 750 (1968)).