A Comprehensive Consideration of the Structural Error Doctrine

Abstract

Court proceedings are rarely perfect – far from it. Errors happen regularly before and during litigation, and when they do, courts must decide how to handle them. Gone are the days when a typo might demand a new trial: many errors – typos certainly, but also much more serious mistakes – are regularly deemed harmless by the court, meaning those errors had no prejudicial effect on the outcome of the case (and so do not warrant a new trial). Yet even after the development of the harmless-error doctrine in the early part of the twentieth century, errors involving constitutional rights were de facto prejudicial: if a defendant could identify a constitutional error then he was entitled to a new trial. This rule, too, eventually gave way: by the late 1960s the United States Supreme Court had ruled that most constitutional errors were susceptible to harmless- error analysis. But there has remained a narrow set of constitutional errors that, once identified, still automatically entitle a defendant to a new trial. These are called “structural errors,” and are the topic of this Article.

The idea that some errors are “structural” was introduced nearly thirty years ago, yet the criteria for what makes an error structural are even less clear now than they were then – indeed, over the past few years the doctrine has arguably gone through a transformation of sorts. This Article describes the origins and development of the structural-error doctrine, lists and analyzes all of the ostensibly “structural” errors identified by the circuit courts (the culmination of a nine-hundred-opinion case survey), discusses and attempts to reconcile the current state of the law, and, finally, offers guidance on several outstanding questions – specifically, how the structural-error doctrine interfaces with the plain-error doctrine, and whether structural errors are waivable. The author hopes that this article will provide an up-to-date, comprehensive, and accurate resource on structural error that will prove helpful to judges, practitioners, and academics alike.