Silence cannot be harmless.

• Author: Chernack, Gregory S.
• Position: Omitted jury instructions as harmless error

Thirty years ago in Chapman v. California,(1) the Supreme Court permitted the application of harmless error analysis to constitutional errors in criminal cases. Since then, courts have had to decide which errors are subject to such review and which produce automatic reversal. The Supreme Court has attempted to develop a standard that distinguishes trial errors that "occur[] during the presentation of the case to the jury"(2) and are subject to harmless error analysis, from structural defects, which affect the entire trial process and do not undergo Chapman analysis.(3) This delineation, however, is of questionable validity and is quite difficult to apply.(4)

In several instances the Supreme Court has found that jury instruction errors should undergo harmless error review;(5) nevertheless, the Court has remained committed, at least nominally, to the jury's responsibility to find guilt beyond a reasonable doubt on all elements of an offense.(6) This tension between the expansion of areas in which Chapman review applies(7) and the desire to protect the province of the jury has appeared once again in United States v. Rogers. In Rogers, the Eleventh Circuit became the latest court of appeals to examine whether an omitted jury instruction is subject to harmless error review.(9) The court found that harmless error review was appropriate, a decision that undermines the jury's critical role in the criminal process. This Case Note argues that to protect this function, omitted jury instructions should not be subject to Chapman review but should instead produce automatic reversal.

I

On its facts, Rogers appears simple enough. After police arrested George Rogers for driving while intoxicated, they found a number of firearms including a machine gun (a "MAC-11") and an unregistered silencer without a serial number in his vehicle.(10) While being interviewed by, agents of the Bureau of Alcohol, Tobacco, and Firearms, Rogers denied owning the firearms but spoke of his expertise in weapons and identified the MAC-11 and silencer.(11) He was indicted on three different charges: knowingly possessing a machine gun; knowingly possessing a silencer not registered to him; and knowingly possessing a silencer without a serial number.(12) When Rogers testified at trial, he denied ownership but again identified the firearms at issue.(13) Over defense counsel's objection, the trial judge refused to instruct the jury that the government had to prove beyond a reasonable doubt that Rogers knew that these items were firearms.(14) He was then convicted on all three counts.

Shortly thereafter, the Supreme Court held in Staples v. United States(15) that mens rea is required for a conviction under the National Firearms Act.(16) As Staples required the government to prove beyond a reasonable doubt that the defendant knew the weapon was a machine gun, the appeals court reversed Roger's conviction on the first Count.(17) Although the court had little trouble deciding that the omitted instruction on the additional counts was a constitutional error,(18) it found that the omission was not a structural defect.(19) The court then adopted the logic of Justice Scalia's concurrence in Carella v. California,20 which applied harmless error analysis to the use of a conclusive presumption in the jury instruction. Because Rogers had admitted both to the police and on the stand that he knew what the silencer was, the court held that the government had "'prove[n] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."(21) Thus the convictions on the latter two counts were upheld.

II

While the Chapman Court found that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,"(22) in more recent opinions the Court has held that most constitutional errors should undergo harmless error analysis.(23) Rogers forces us to question the extent to which this desire to import harmless error analysis can be realized. The decision of the Eleventh Circuit to employ Chapman analysis in Rogers runs afoul of two central protections of the Due Process Clause. The Supreme Court has long held that fundamental to the right of trial by jury is the principle that defendants can only be found guilty if the jury so finds "upon proof beyond a reasonable doubt of everyfact necessary to constitute the crime with which he is charged."(24) Employing harmless error analysis when an instruction is omitted makes it impossible to determine whether a jury has found the existence of "every fact necessary" and, even if it has, whether it has done so beyond a reasonable doubt.

In holding that harmless error review was appropriate, the Rogers court analogized the situation it faced to examining...