Do you have a prejudicial error?

The fundamental question you must decide in taking an appeal is whether the legal error is prejudicial.  If it is not, you might as well stop what you're doing.  If it is, please proceed to "Go."

The requirement that an error be prejudicial to justify reversal of a judgment or order finds its source in the California Constitution, Article VI, section 13:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

Code of Civil Procedure section 475 also addresses prejudicial error:  “No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed.”  Evidence Code section 353 provides that no verdict or finding shall be set aside, or a judgment or decision reversed, based on the ground of erroneous admission of evidence unless the error resulted in “a miscarriage of justice.”  (Evid. C., §§ 353(b), 354.)

Since prejudice is not presumed, according to Code of Civil Procedure section 475(b), the appellant bears the burden of affirmatively demonstrating prejudicial error.  Trial attorneys will often tell me about errors that occurred during trial.  Some of these errors might not appear in the record such as in-chamber or sidebar discussions.  Once the error has been found in the record, appellant must take a two-prong approach – the error exists and it is prejudicial.  On the other hand, respondents will also take a two-prong approach - no error occurred but even if it did, the error is not prejudicial.