A Comprehensive Consideration of the Structural-Error Doctrine.

AuthorHenderson, Zachary L.

TABLE OF CONTENTS ABSTRACT 965 TABLE OF CONTENTS 966 I. INTRODUCTION 967 II. THE ORIGINS AND DEVELOPMENT OF THE STRUCTURAL-ERROR DOCTRINE 968 A. Origins 969 1. Harmless Error 969 2. Constitutional Error 970 3. Structural Error 972 B. Development 972 C. Weaver v. Massachusetts 975 D. In Weaver's Wake 977 1. Justices Alito and Gorsuch 978 2. Justices Kagan and Breyer 979 3. Chief Justice Roberts 979 4. Justice Thomas 980 5. Justice Kavanaugh 981 6. Justices Sotomayor and Ginsburg 981 7. Justice Barrett 981 III. IDENTIFYING STRUCTURAL ERROR: HOLDINGS OF THE SUPREME AND 982 CIRCUIT COURTS A. A Working Definition of Structural Error 982 B. Structural Errors Identified by the Supreme Court 983 1. The First Five Structural Errors 983 2. Constitutionally Deficient Reasonable-Doubt 985 Instructions 3. Denial of One's Counsel of Choice 986 4. Magistrate Judge Presiding Over Jury Selection 987 Without Consent 5. Allowing Counsel to Admit Guilt Over 988 Defendant-Client's Objections C. Structural Error in the Circuit Courts 989 1. Structural Errors the Supreme Court is Likely to 990 Affirm 2. Structural Errors the Supreme Court is Unlikely to 993 Affirm IV. UNRESOLVED QUESTIONS 1003 A. Waiver or Forfeiture: What is the Difference, and Why 1004 Does It Matter? B. Structural Error and the Plain-Error Doctrine 1005 C. Structural Error and Waiver 1008 V. CONCLUSION 1010 I. INTRODUCTION

Courts and parties commit errors all the time, and those errors are often the stuff appeals are made of. Perhaps a judge gave a bad evidentiary ruling, (1) or a sentencing judge adopted a probation officer's faulty Sentencing Guidelines recommendation; (2) the list of errors that could occur at various points in a trial are limitless. In fact, litigation today is so complex that a totally error-free case is probably the exception rather than the norm. (3)

For centuries, courts have wrestled with what to do about error. In recent times, the United States Supreme Court identified a special category of constitutional errors called structural errors. (4) As the name suggests, structural errors do not occur in a vacuum. (5) They have broad effects that not only reach forward to the outcome of a case, but backward (to the foundation of the case) and inward (to its structure). (6) In short, structural errors have the effect of somehow "breaking" the proceedings in a fundamental, irreversible way. While most errors are subject to the harmless-error doctrine--meaning a reviewing court asks whether the error on review actually affected a party's substantial rights before reversing the case--structural errors are automatically reversible; no harmlessness analysis is required. (7)

The Supreme Court has tried to be clear that the list of structural errors is short, (8) but that has not stopped litigants from trying to shoehorn the errors in their own cases into the structural-error doctrine, nor has it stopped the circuit courts from identifying more than a dozen new, ostensibly "structural" errors. (9)

This Article seeks to provide a comprehensive treatment of the structural-error doctrine, as created and maintained by the Supreme Court, and as applied by the circuit courts. Considerable effort went into ensuring the comprehensiveness of the treatment of the issue: this Article is the culmination of the careful review of over nine hundred circuit and Supreme Court opinions, all dealing in some way with the structural-error doctrine.

Part II begins by discussing the structural-error doctrine more generally, including its origins in Subpart A and development in Subpart B, followed by an in-depth discussion of the Supreme Court's significant opinion in Weaver v. Massachusetts in Subpart C and that decision's likely future implications in Subpart D. (10) Part III moves down an order of generality by first proposing a prescriptive, functional definition of "structural error" in Subpart A, with the hope that this definition can help shed light on why a given error is or is not structural. The Article then discusses each of the nine structural errors explicitly identified by the Supreme Court in Subpart B as well as the (many) such errors identified by the circuit courts but not yet ratified or rejected by the Supreme Court in Subpart C. (AS it turns out, most of them are probably not structural errors after all.) Part IV considers and attempts to resolve several unanswered questions about the doctrine. It begins with a short overview of the waiver and forfeiture doctrines in Subpart A before discussing how the structural-error doctrine interfaces with the plain-error doctrine in Subpart B and whether structural errors are waivable in Subpart C.


    Since announcing the structural-error doctrine in 1991, the Supreme Court and circuit courts have struggled to pin down a definition of structural error that is neither over- nor under-inclusive. At the core of the structural-error doctrine is the idea that some constitutional errors damage the framework of the trial so thoroughly that no aspect of the trial is reliable any longer. (11) In such cases, we cannot look to the rest of the trial to decide whether the error that occurred was harmless; if the error damaged the foundation of the trial, then no part of that trial can be relied on to help determine whether the error in question was harmless. (12) This is all well and good in the abstract, but applying it to specific errors in specific cases can be difficult. After all, it is probably true that most defendants are convinced that the error they fell victim to seriously affected the fairness of their trial.

    The history, origins, and development of the doctrine offer the best opportunity to understand the contours of what makes an error structural or not. Accordingly, we begin at the beginning.

    1. Origins

      The term "structural error" first entered the judicial lexicon in the early 1990s. In Arizona v. Fulminante, the Supreme Court introduced the idea of "structural defects," (13) and just a few months later in Freytag v. C.I.R., Justice Scalia used the phrase "structural errors," (14) the term that stuck. Yet Fulminante--a case this Article discusses at length later--does not represent the absolute beginning of the structural-error doctrine; far from it. To understand the origins of structural error--a kind of error not susceptible to harmless-error review--we first must understand the origins of harmless error itself.

      1. Harmless Error

        As Justice Traynor once put it, there was a time in American jurisprudence when "no error was lightly forgiven." (15) "[T]he slightest error in a trial could spoil the judgment," and legal proceedings were "entirely surrounded by booby traps." (16) In the mid-to-late 1800s, the federal and state courts of appeals were so paralyzed by their own fear of judicial overreach (17) that they had turned themselves into what one scholar described as "impregnable citadels of technicality." (18) In The Riddle of Harmless Error, Justice Traynor pointed to two examples of this. (19) In 1863, the Supreme Court of California reversed a judgment in a robbery case due to an error of omission: the indictment did not specify that the taken property did not belong to the defendant. (20) In another case a decade later, the same court overturned a criminal conviction because the indictment contained a typo: it charged the defendant with "larcey" (rather than "larceny"). (21)

        By the early 1900s, dissatisfaction with this approach to error was vocal and ubiquitous. (22) In 1906, Roscoe Pound, the renowned scholar and eventual dean of Harvard Law School, declared, without hyperbole, that "the worst feature of American procedure is the lavish granting of new trials." (23) Justice Rutledge would later recount, in his majority opinion in Kotteakos v. United States, that "[s]o great was the threat of reversal, in many jurisdictions, that criminal trial became a game for sowing reversible error in the record, only to have repeated the same matching of wits when a new trial had been thus obtained." (24)

        The dam finally broke when, in 1919, Congress amended the law governing grants of new trials in the federal courts. The Act of February 26, 1919 clarified that, before granting a new trial,

        [T]he court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties. (25) This re-centering of federal error analysis around substantial rights begot our modern harmless error doctrine (26) and led to similar adoptions in the state courts. (27) Eventually, all fifty states passed harmless-error statutes or rules. (28)

        After Kotteakos, harmless-error doctrine took root in American jurisprudence (29)--but at the same time that the Kotteakos Court applied this doctrine, it also hinted that there still existed a whole class of errors to which harmless-error analysis might not apply. (30) Where the error in question was a departure from "a constitutional norm or a specific command of Congress," the Court said, even a non-prejudicial error might still need to be reversed. (31)

      2. Constitutional Error

        For years after Kotteakos, courts continued to routinely reverse cases without a finding of prejudice when the error implicated constitutional rights and norms. (32) Indeed, the Supreme Court itself began to state more confidently that harmless error was "an impermissible doctrine" to apply to constitutional errors. (33) Yet courts were not consistent in applying this per se reversal rule for constitutional cases, (34) and in Chapman v. California the Court finally announced that harmless-error analysis could be applied to constitutional errors after all, subject to several notable exceptions. (35)

        The Chapman Court began by explaining that some constitutional errors remained insusceptible to harmless-error review. (The court...

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