structural error in Michigan

2022Further, this Court in Cain specifically rejected the majority opinion’s new burden- shifting framework, stating: The dissent’s theory that the structural nature of the error presumptively establishes the fourth prong is inconsistent with this Court’s recent holding in Vaughn, that even with regards to a structural error, a defendant is not entitled to relief unless he can establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings and that while any error that is structural is likely to have an effect on the fairness, integrity or public r

2022Further, this Court in Cain specifically rejected the majority opinion’s new burden- shifting framework, stating: The dissent’s theory that the structural nature of the error presumptively establishes the fourth prong is inconsistent with this Court’s recent holding in Vaughn, that even with regards to a structural error, a defendant is not entitled to relief unless he can establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings and that while any error that is structural is likely to have an effect on the fairness, integrity or public r

2025However, “once a reviewing court has concluded that judicial misconduct has denied the defendant a fair trial, a structural error has occurred and automatic reversal is required.” Stevens, 498 Mich at 168 .

2025“When the issue is preserved and a reviewing court determines that a judge has pierced the veil of judicial impartiality, a structural error has been established that requires reversing the judgment and remanding the case for a new trial.” Stevens, 498 Mich at 178 .

2024SIXTH AMENDMENT RIGHT TO COUNSEL With respect to defendant’s Sixth Amendment right to counsel argument, we held in the prior opinion that defendant alleged a structural error, People v Russell, 471 Mich 182 , 194 n 29; 684 NW2d 745 (2004), but that his failure to have counsel for two hearings over a two-month period, in violation of People v Anderson, 398 Mich 361, 367-368 ; 247 NW2d 857 (1976), and MCR 6.005(D), did not meet the fourth prong of the plain error test under People v Carines, 460 Mich 750, 763 ; 597 NW2d 130 (1999): The only period when defendant was without appointed counsel and

2024SIXTH AMENDMENT RIGHT TO COUNSEL With respect to defendant’s Sixth Amendment right to counsel argument, we held in the prior opinion that defendant alleged a structural error, People v Russell, 471 Mich 182 , 194 n 29; 684 NW2d 745 (2004), but that his failure to have counsel for two hearings over a two-month period, in violation of People v Anderson, 398 Mich 361, 367-368 ; 247 NW2d 857 (1976), and MCR 6.005(D), did not meet the fourth prong of the plain error test under People v Carines, 460 Mich 750, 763 ; 597 NW2d 130 (1999): The only period when defendant was without appointed counsel and

2026A “complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal.” People v Willing, 267 Mich App 208, 224 ; 704 NW2d 472 (2005) (citations omitted).

2026A “complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal.” People v Willing, 267 Mich App 208, 224 ; 704 NW2d 472 (2005) (citations omitted).

2022In Heller, 316 Mich App at 321 , this Court strongly indicated that the lack of in-person sentencing for felony convictions was a structural error when it stated that sentencing via videoconference renders the sentencing “fundamentally unfair.” See Neder v United States, 527 US 1, 8 ; 119 S Ct 1827 ; 144 L Ed 23 35 (1999) (explaining that a structural error is one that -5- “affect[s] the framework within which the trial proceeds” and “necessarily render a trial fundamentally unfair[.]”) (quotation marks and citation omitted).

2022In Heller, 316 Mich App at 321 , this Court strongly indicated that the lack of in-person sentencing for felony convictions was a structural error when it stated that sentencing via videoconference renders the sentencing “fundamentally unfair.” See Neder v United States, 527 US 1, 8 ; 119 S Ct 1827 ; 144 L Ed 23 35 (1999) (explaining that a structural error is one that -5- “affect[s] the framework within which the trial proceeds” and “necessarily render a trial fundamentally unfair[.]”) (quotation marks and citation omitted).

2025Thus “[t]he complete denial of counsel at a critical stage of a criminal proceeding is a structural error that renders the result unreliable, thus requiring automatic reversal.” King, 512 Mich at 16, citing Russell, 471 Mich at 194 n 29.

2024SIXTH AMENDMENT RIGHT TO COUNSEL With respect to defendant’s Sixth Amendment right to counsel argument, we held in the prior opinion that defendant alleged a structural error, People v Russell, 471 Mich 182 , 194 n 29; 684 NW2d 745 (2004), but that his failure to have counsel for two hearings over a two-month period, in violation of People v Anderson, 398 Mich 361, 367-368 ; 247 NW2d 857 (1976), and MCR 6.005(D), did not meet the fourth prong of the plain error test under People v Carines, 460 Mich 750, 763 ; 597 NW2d 130 (1999): The only period when defendant was without appointed counsel and

2022Further, this Court in Cain specifically rejected the majority opinion’s new burden- shifting framework, stating: The dissent’s theory that the structural nature of the error presumptively establishes the fourth prong is inconsistent with this Court’s recent holding in Vaughn, that even with regards to a structural error, a defendant is not entitled to relief unless he can establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings and that while any error that is structural is likely to have an effect on the fairness, integrity or public r

2022Further, this Court in Cain specifically rejected the majority opinion’s new burden- shifting framework, stating: The dissent’s theory that the structural nature of the error presumptively establishes the fourth prong is inconsistent with this Court’s recent holding in Vaughn, that even with regards to a structural error, a defendant is not entitled to relief unless he can establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings and that while any error that is structural is likely to have an effect on the fairness, integrity or public r

2023Consequently, it is subject to harmless-error review.”); Oklahoma, Robinson v State, 255 P3d 425, 427-430 ; 2011 OK CR 15 (Okla Crim App, 2011) (citing Rivera v Illinois, 556 US 148 ; 129 S Ct 1446 ; 173 L Ed 2d 320 (2009), the Court reversed caselaw holding that “this is structural error not subject to harmless error review” and instead opting to “review these claims on a case-by-case basis, and determine whether the error is harmless beyond a reasonable doubt”); South Dakota, State v Verhoef, 627 NW2d 437, 442 ; 2001 SD 58 (2001) (“[The defendant] has failed to show that the twelve jurors wh

2023Consequently, it is subject to harmless-error review.”); Oklahoma, Robinson v State, 255 P3d 425, 427-430 ; 2011 OK CR 15 (Okla Crim App, 2011) (citing Rivera v Illinois, 556 US 148 ; 129 S Ct 1446 ; 173 L Ed 2d 320 (2009), the Court reversed caselaw holding that “this is structural error not subject to harmless error review” and instead opting to “review these claims on a case-by-case basis, and determine whether the error is harmless beyond a reasonable doubt”); South Dakota, State v Verhoef, 627 NW2d 437, 442 ; 2001 SD 58 (2001) (“[The defendant] has failed to show that the twelve jurors wh

2017Although the lawyer’s absence likely did not amount to a complete denial of counsel so as to constitute a structural error under United States v Cronic, 466 US 648, 659-662 ; 104 S Ct 2039 ; 80 L Ed 2d 657 (1984), we find the court’s willingness to proceed without Murphy’s lawyer disturbing.

2017Although the lawyer’s absence likely did not amount to a complete denial of counsel so as to constitute a structural error under United States v Cronic, 466 US 648, 659-662 ; 104 S Ct 2039 ; 80 L Ed 2d 657 (1984), we find the court’s willingness to proceed without Murphy’s lawyer disturbing.

2025The Court noted that Duncan, 462 Mich at 48 , did not address whether a defendant may waive a structural error arising from a complete failure to instruct the jury on the elements of an offense.

2021A structural error “necessarily renders unfair or unreliable the determining of guilt or innocence.” People v Duncan, 462 Mich 47, 51 ; 610 NW2d 551 (2000).

2024Structural errors are “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless- error’ standards.” See Arizona v Fulminante, 499 US 279, 309 ; 111 S Ct 1246 ; 113 L Ed 2d 302 (1991) (holding that the use of coerced confession at trial was a structural error); Weaver v Massachusetts, 582 US 286, 293-296 ; 137 S Ct 1899 ; 198 L Ed 2d 420 (2017) (holding that the right to public trial is structural); United States v Gonzalez-Lopez, 548 US 140, 148-150 ; 126 S Ct 2557 ; 165 L Ed 2d 409 (2006) (holding that the Sixth Amendment right to counsel of one’s choice

2024Structural errors are “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless- error’ standards.” See Arizona v Fulminante, 499 US 279, 309 ; 111 S Ct 1246 ; 113 L Ed 2d 302 (1991) (holding that the use of coerced confession at trial was a structural error); Weaver v Massachusetts, 582 US 286, 293-296 ; 137 S Ct 1899 ; 198 L Ed 2d 420 (2017) (holding that the right to public trial is structural); United States v Gonzalez-Lopez, 548 US 140, 148-150 ; 126 S Ct 2557 ; 165 L Ed 2d 409 (2006) (holding that the Sixth Amendment right to counsel of one’s choice

2026Therefore, that a convicted felon sat as a juror on defendant’s jury did not constitute a structural error.” People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008).

2026Therefore, that a convicted felon sat as a juror on defendant’s jury did not constitute a structural error.” People v Miller, 482 Mich 540, 556 ; 759 NW2d 850 (2008).

2022“The list of structural errors that the Supreme Court has recognized is short and limited,” and the “Supreme Court has never held that the exclusion of a defendant from a critical stage of his criminal proceedings constitutes a structural error.” Campbell v Rice, 408 F3d 1166, 1172 (CA 9, 2005) (en banc). “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Rose v Clark, 478 US 570, 578-79 ; 106 S Ct 3101 ; 92 L Ed 2d 460 (1986).

2022“The list of structural errors that the Supreme Court has recognized is short and limited,” and the “Supreme Court has never held that the exclusion of a defendant from a critical stage of his criminal proceedings constitutes a structural error.” Campbell v Rice, 408 F3d 1166, 1172 (CA 9, 2005) (en banc). “[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Rose v Clark, 478 US 570, 578-79 ; 106 S Ct 3101 ; 92 L Ed 2d 460 (1986).

2023See People v Walker, 273 Mich App 56, 67-68 ; 728 NW2d 902 (2006) (COOPER, J., concurring) (noting a gap in Confrontation Clause precedent); but see United States v Graham, 278 F App’x 538, 545 n 2 (CA 6, 2008) (holding that admission of evidence in violation of the Confrontation Clause is not a structural error).5 But the principles and directions outlined in Crawford and more recent Confrontation Clause precedent suggest that the Confrontation Clause violations in this case are precisely what structural error contemplates.

2023See People v Walker, 273 Mich App 56, 67-68 ; 728 NW2d 902 (2006) (COOPER, J., concurring) (noting a gap in Confrontation Clause precedent); but see United States v Graham, 278 F App’x 538, 545 n 2 (CA 6, 2008) (holding that admission of evidence in violation of the Confrontation Clause is not a structural error).5 But the principles and directions outlined in Crawford and more recent Confrontation Clause precedent suggest that the Confrontation Clause violations in this case are precisely what structural error contemplates.

2024Structural errors are “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless- error’ standards.” See Arizona v Fulminante, 499 US 279, 309 ; 111 S Ct 1246 ; 113 L Ed 2d 302 (1991) (holding that the use of coerced confession at trial was a structural error); Weaver v Massachusetts, 582 US 286, 293-296 ; 137 S Ct 1899 ; 198 L Ed 2d 420 (2017) (holding that the right to public trial is structural); United States v Gonzalez-Lopez, 548 US 140, 148-150 ; 126 S Ct 2557 ; 165 L Ed 2d 409 (2006) (holding that the Sixth Amendment right to counsel of one’s choice

2024Structural errors are “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless- error’ standards.” See Arizona v Fulminante, 499 US 279, 309 ; 111 S Ct 1246 ; 113 L Ed 2d 302 (1991) (holding that the use of coerced confession at trial was a structural error); Weaver v Massachusetts, 582 US 286, 293-296 ; 137 S Ct 1899 ; 198 L Ed 2d 420 (2017) (holding that the right to public trial is structural); United States v Gonzalez-Lopez, 548 US 140, 148-150 ; 126 S Ct 2557 ; 165 L Ed 2d 409 (2006) (holding that the Sixth Amendment right to counsel of one’s choice

2025Missouri v Frye, 566 US 134, 140 ; 132 S Ct 1399 ; 182 L Ed 2d 379 (2012). “[A] total or complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal.” Buie, 298 Mich App at 61-62 (quotation marks and citation omitted).

2016Both our Court and the Supreme Court (albeit in an order) have unequivocally stated that it “is well established that a total or complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal.” People v Buie, 298 Mich App 50, 61-62 ; 825 NW2d 361 (2012), quoting People v Willing, 267 Mich App 208, 224 ; 704 NW2d 472 (2005).

2025See People v Allan, 299 Mich App 205, 210-211 ; 829 NW2d 319 (2013), overruled in part on other grounds by Cain, 498 Mich at 128 , which held that it was structural error to not swear-in the jury.1 To obtain relief under this standard, “the fourth Carines 1 The Allan Court’s conclusion that this was a structural error was not modified by Cain, as the majority correctly details.

2025Compare People v Torrez, 548 P3d 685, 691-695 ; 2024 COA 11 (Colo App, 2024) (not a structural error, relying in part on Cain), and State v Vogh, 179 Or App 585, 596 ; 41 P3d 421 (2002) (not a structural error), with People v Moon, 2022 IL 125959 ; -1- prong calls upon an appellate court to exercise its discretion in deciding whether to reverse, and . . . relief is warranted only when the court determines that the plain, forfeited error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of the judicial proceedings.” C

2022Further, this Court in Cain specifically rejected the majority opinion’s new burden- shifting framework, stating: The dissent’s theory that the structural nature of the error presumptively establishes the fourth prong is inconsistent with this Court’s recent holding in Vaughn, that even with regards to a structural error, a defendant is not entitled to relief unless he can establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings and that while any error that is structural is likely to have an effect on the fairness, integrity or public r

2022Further, this Court in Cain specifically rejected the majority opinion’s new burden- shifting framework, stating: The dissent’s theory that the structural nature of the error presumptively establishes the fourth prong is inconsistent with this Court’s recent holding in Vaughn, that even with regards to a structural error, a defendant is not entitled to relief unless he can establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings and that while any error that is structural is likely to have an effect on the fairness, integrity or public r

2022“The complete denial of counsel at a critical stage of a criminal proceeding . . . is a structural error requiring automatic reversal.” People v Arnold, 477 Mich 852 (2006); see also People v Willing, 267 Mich App 208, 224 ; 704 NW2d 472 (2005) (“It is well established that a total or complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal.”).

2017See, e.g., Takacs v Engle, 768 F2d 122, 124 (CA 6, 1985) (holding that “Coleman’s harmless error analysis remains good law” despite the defendant’s argument that it had been overruled by Cronic and Strickland v Washington, 466 US 668 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984)); State v 4 The same rationale applies to the Court of Appeals’ reliance on People v Arnold, 477 Mich 852 ; 720 NW2d 740 (2006), and to our statement in People v Russell, 471 Mich 182 , 194 n 29; 684 NW2d 745 (2004), that “[t]he complete denial of counsel at a critical stage of a criminal proceeding is a structural error tha

2025See People v Allan, 299 Mich App 205, 210-211 ; 829 NW2d 319 (2013), overruled in part on other grounds by Cain, 498 Mich at 128 , which held that it was structural error to not swear-in the jury.1 To obtain relief under this standard, “the fourth Carines 1 The Allan Court’s conclusion that this was a structural error was not modified by Cain, as the majority correctly details.

2025See People v Allan, 299 Mich App 205, 210-211 ; 829 NW2d 319 (2013), overruled in part on other grounds by Cain, 498 Mich at 128 , which held that it was structural error to not swear-in the jury.1 To obtain relief under this standard, “the fourth Carines 1 The Allan Court’s conclusion that this was a structural error was not modified by Cain, as the majority correctly details.

2017See, e.g., Takacs v Engle, 768 F2d 122, 124 (CA 6, 1985) (holding that “Coleman’s harmless error analysis remains good law” despite the defendant’s argument that it had been overruled by Cronic and Strickland v Washington, 466 US 668 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984)); State v 4 The same rationale applies to the Court of Appeals’ reliance on People v Arnold, 477 Mich 852 ; 720 NW2d 740 (2006), and to our statement in People v Russell, 471 Mich 182 , 194 n 29; 684 NW2d 745 (2004), that “[t]he complete denial of counsel at a critical stage of a criminal proceeding is a structural error tha

2017See, e.g., Takacs v Engle, 768 F2d 122, 124 (CA 6, 1985) (holding that “Coleman’s harmless error analysis remains good law” despite the defendant’s argument that it had been overruled by Cronic and Strickland v Washington, 466 US 668 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984)); State v 4 The same rationale applies to the Court of Appeals’ reliance on People v Arnold, 477 Mich 852 ; 720 NW2d 740 (2006), and to our statement in People v Russell, 471 Mich 182 , 194 n 29; 684 NW2d 745 (2004), that “[t]he complete denial of counsel at a critical stage of a criminal proceeding is a structural error tha

2023Pellegrino v Ampco Sys Parking, 486 Mich 330 , 340 n 5; 785 NW2d 45 (2010) (“Only parts I through III of the lead opinion in Bell garnered majority support.”); id. at 348 n 12 (“The lead opinion [in Bell] stated in dictum 9 that the improper denial of a peremptory challenge on a basis other than race is subject to [harmless-error] analysis.”). 2 In Kabongo, 507 Mich 78 , this Court addressed whether the trial court’s erroneous ruling on an objection to a peremptory challenge under Batson, 476 US 79 , was a structural error requiring automatic reversal or whether it was subject to harmless-erro

2023Pellegrino v Ampco Sys Parking, 486 Mich 330 , 340 n 5; 785 NW2d 45 (2010) (“Only parts I through III of the lead opinion in Bell garnered majority support.”); id. at 348 n 12 (“The lead opinion [in Bell] stated in dictum 9 that the improper denial of a peremptory challenge on a basis other than race is subject to [harmless-error] analysis.”). 2 In Kabongo, 507 Mich 78 , this Court addressed whether the trial court’s erroneous ruling on an objection to a peremptory challenge under Batson, 476 US 79 , was a structural error requiring automatic reversal or whether it was subject to harmless-erro

2023See Heller, 316 Mich App at 318-320 (discussing the “profound significance” of sentencing, acknowledging the “intensely personal nature of the process,” and noting the “dehumanize[ation]” of that process associated with video sentencing.) In reaching its conclusion that remote sentencing is not a structural error, this Court also acknowledged—but largely ignored—the principles outlined in Heller, 316 Mich App at 321 .

2023See Heller, 316 Mich App at 318-320 (discussing the “profound significance” of sentencing, acknowledging the “intensely personal nature of the process,” and noting the “dehumanize[ation]” of that process associated with video sentencing.) In reaching its conclusion that remote sentencing is not a structural error, this Court also acknowledged—but largely ignored—the principles outlined in Heller, 316 Mich App at 321 .