Classifying constructive amendment as trial or structural error.

• Author: Oyer, Kendra

INTRODUCTION I. DISTINGUISHING BETWEEN TRIAL AND STRUCTURAL ERRORS A. Four Readings of Fulminante 1. The Framework Approach 2. The Evidentiary Approach 3. The Timing Approach 4. The Reliability Approach B. The Aftermath: Confusion About the Four Approaches C. Alternatives: Reconciling the Four Approaches II. CASE STUDY: CONSTRUCTIVE AMENDMENT A. The Problem of Constructive Amendment B. Preserved Objections and Plain Error Review C. Current Circuit Court Views 1. Structural Error in the Fourth Circuit 2. Per Se Prejudice in the Second Circuit 3. Rebuttable Presumption of Prejudice in the Third Circuit 4. Straightforward Plain Error Analysis in Other Circuits D. Applying the Four Fulminante Approaches 1. The Framework Approach Applied to Constructive Amendment 2. The Evidentiary Approach Applied to Constructive Amendment 3. The Timing Approach Applied to Constructive Amendment 4. The Reliability Approach Applied to Constructive Amendment E. Benefits of Using a Rebuttable Presumption of Prejudice CONCLUSION INTRODUCTION

Federal courts guarantee the right to a fair, but not to an error-free, trial. (1) When an error occurs, courts must balance the benefit of correcting the error against the judicial system's interests in efficiency (including minimizing the costs of a retrial) and finality (including maintaining public confidence in judicial decisions). (2) Traditionally, efficiency and finality have carried less weight than fairness in the criminal context because criminal sanctions may result in imprisonment and greater social stigma than civil sanctions. (3) Yet, even in criminal cases, some constitutional errors are harmless and do not justify reversal of the trial outcome. (4) The category of errors known as trial errors can be harmless if the government can show beyond a reasonable doubt that they did not contribute to the verdict. (5) Other errors, called structural errors, are so damning to the fairness of a trial that they warrant automatic reversal. (6) Structural errors account for a small subset of all errors, and even most constitutional errors are trial errors, subject to harmless error review.

This Comment examines the concept of structural error and the merit of classifying one particular error--constructive amendment of an indictment--as a structural error. Constructive amendment "occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury." (7)

Supreme Court doctrine provides a reasonable foundation for finding that constructive amendment is a structural error. Nonetheless, the Court's understandable hesitance to expand the category of structural errors, as well as the malleability of the structural error doctrine, makes it more likely that constructive amendment will be classified as a trial error.

In Part I, I spell out the four interpretations of Arizona v. Fulminante, the case in which the Supreme Court distinguished structural error from trial error. I critique each interpretation's ability to explain structural error descriptively (by articulating why the Court has classified errors as it has) and prescriptively (by identifying the features of errors that are not conducive to harmless error analysis). I conclude that none of the four interpretations provides an independently satisfactory account of structural error, although each interpretation identifies features that many, though not all, strucutral errors share. In other words, each interpretation points to features that constitute a family resemblance among structural errors.

In Part II, I apply Fulminante to constructive amendment. I explore the relationship between structural error and plain error review, and critique certain circuit courts' treatment of constructive amendment as structural error only when the defendant preserves the objection at trial, not when the case arises on plain error review. After surveying the divergent approaches that the circuits apply to constructive amendment on plain error review, I apply Fulminante's four interpretations and find that constructive amendment resembles identified structural errors in numerous ways. I conclude, however, that despite a pre-Fulminante Supreme Court holding giving constructive amendment a status that seems structural under the Fulminante framework, (8) today's Supreme Court is unlikely to classify constructive amendment as structural error because of the Court's reluctance to expand that category of error. Assuming that courts will continue to treat constructive amendment as a trial error, I therefore propose that courts considering constructive amendment on plain error review employ a rebuttable presumption of prejudice when the burden of proving the content of jury deliberations would otherwise rest with the defendant.

1. DISTINGUISHING BETWEEN TRIAL AND STRUCTURAL ERRORS

   The Supreme Court has recognized a narrow set of rights that, if denied, are structural errors: the rights to counsel (9) and to counsel of choice, (10) the right of self-representation, (11) the right to an impartial judge, (12)freedom from racial discrimination in grand jury selection, (13) the right to a public trial, (14) and the right to accurate reasonable-doubt jury instructions. (15) By contrast, the list of trial errors is extensive. (14) While the list of structural errors has remained consistent, the Supreme Court's methods of distinguishing between trial and structural error have fluctuated.

   1. Four Readings of Fulminante

      In Fulminante, the Supreme Court provided a theoretical explanation for the dichotomy between the trial errors and structural errors that it had identified in prior cases. The closely divided Court then held that the admission of a coerced confession was a trial error, subjecting it to harmless error analysis. (17) The majority used three different descriptions of the structural error category, and subsequent opinions reveal a fourth possible reading of Fulminante's characterization of structural error. In this Section, I explain these four readings and address the conceptual weaknesses of each. I conclude that no single reading provides a satisfactory explanation of structural error.

      1. The Framework Approach

         One characterization of structural error in Fulminante focused on "structural defects in the constitution of the trial mechanism," which the Court also described as "structural defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (18) The policy underlying this "framework approach" is sensible: the parties need not debate whether the error affected the outcome, because the defect permeated the trial structure itself. Because trial structure dictates trial outcome, judges can fairly presume that the error affected substantial rights.

         Despite its intuitive appeal, the framework approach has two major problems. First, the framework approach cannot explain why errors that are similar in their relation to the trial framework are classified differently. For example, Fulminante cited a case in which the "denial of a defendant's right to be present at trial" was classified as a trial error. (19) Admittedly, a defendant's absence from trial may not affect the substance of proceedings like the denial of counsel would, so this simple distinction may explain why the former is a trial error while the latter is a structural error.

         The defendant's absence, however, is part of the broader framework of who may be present at the trial. Characterized in this way, the right to be present at trial is analogous to the denial of a public trial, which the Supreme Court has deemed structural. (20) If any difference exists, the defendant's presence seems more basic to the trial framework in an adversarial system than does the presence of nonparty observers. Given the similarity of those two errors in terms of the framework of a trial and the trial's audience, the framework approach cannot explain the divergence in outcomes between cases involving these errors. Even though the right to be present as a defendant is less central to the trial framework than the right to an attorney, it is not less central to the trial framework than the right to a public trial.

         Second, there does not seem to be a principled distinction between a procedural right and a component of the trial framework. The Court treats structural and trial errors as conceptually separate categories by drawing a bright-line distinction in their treatment on review: structural errors generate automatic reversal, while trial errors do not. The framework approach, however, provides only differences of degree between the two types of error. (21) It is challenging to find a bright-line distinction in Fulminante because the case does not explain when an error that is procedural in nature becomes a part of the trial framework. Virtually any procedural fight--and the Constitution affords many--can be described as affecting the framework of a trial, because procedure is the primary ingredient of the framework. One way to resolve the ambiguity is to conclude that all procedural errors are structural errors. Such a conclusion, though, contradicts the Court's statement in Fulminante that "most constitutional errors can be harmless." (22) Because most constitutional errors do not justify automatic reversal, a theory of structural error must distinguish between procedural rights that merit automatic reversal and those that do not. The framework approach does not do so. Consequently, the framework approach is an inadequate means of separating errors into distinct categories for the purpose of appellate review.

         Together, these arguments demonstrate the inadequacies of the framework approach both as a historical explanation of the Court's decisions and as a theoretical tool for...