structural error in District of Columbia

2024Fortune, 59 A.3d at 957 (“[T]he failure to make the prescribed determination of waiver is a structural error . . . that obviates the need for further inquiry into whether the defendant’s substantial rights were affected by the error.”).

2019The United States acknowledges that this court has previously held that, because denial of the Sixth Amendment right to a jury trial is a structural error, when that right is denied "the defendant's substantial rights will be deemed to have been affected, without need for further analysis in the context of the particular trial." Id. at 956 (internal quotation marks omitted).

2024See Arthur v. United States, 986 A.2d 398, 413 (D.C. 2009) (“[I]f [an error] is structural in nature, the defendant’s substantial rights will be deemed to have been affected, without need for further analysis in the context of the particular trial.”); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997) (acknowledging, without resolving, petitioner’s argument that a structural error 16 necessarily affects substantial rights); Barrows v. United States, 15 A.3d 673, 680 (D.C. 2011) (holding that although a structural error necessarily satisfies the third prong of plain-error review, a

2014We are not concerned here with a violation of appellant's Sixth Amendment right as a defendant to have his own trial be a public proceeding, violation of which would constitute a structural error that we would presume to be prejudicial " 'without need for further analysis in the context of the particular trial.’ ” Barrows v. United States, 15 A.3d 673, 678 (D.C.2011). 19 .

2024See Arthur v. United States, 986 A.2d 398, 413 (D.C. 2009) (“[I]f [an error] is structural in nature, the defendant’s substantial rights will be deemed to have been affected, without need for further analysis in the context of the particular trial.”); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997) (acknowledging, without resolving, petitioner’s argument that a structural error 16 necessarily affects substantial rights); Barrows v. United States, 15 A.3d 673, 680 (D.C. 2011) (holding that although a structural error necessarily satisfies the third prong of plain-error review, a

2013Because structural errors are recognized as “intrinsically harmful,” a “ ‘defendant’s substantial rights will be deemed to have been affected, without need for further analysis in the context of the particular trial.’” Id. (quoting Arthur v. United States, 986 A.2d 398, 413 (D.C.2009)).

2018As we conclude that the combination of maximum incarceration of up to 180 days and possible deportation entitles appellant to a jury trial, we need not address the other grounds raised by appellant. 6 to a speedy and public trial, by an impartial jury . . . .‖ Id.7 The Supreme Court has interpreted the scope of the jury trial right, in the light of the common law, as applying to criminal prosecutions for ―serious offenses.‖ Duncan v. Louisiana, 391 U.S. 145, 157-58 (1968).

2018As we conclude that the combination of maximum incarceration of up to 180 days and possible deportation entitles appellant to a jury trial, we need not address the other grounds raised by appellant. 6 to a speedy and public trial, by an impartial jury . . . .‖ Id.7 The Supreme Court has interpreted the scope of the jury trial right, in the light of the common law, as applying to criminal prosecutions for ―serious offenses.‖ Duncan v. Louisiana, 391 U.S. 145, 157-58 (1968).

2016Cf. Taylor, 73 A.3d at 99-100 (deeming appellant’s substantial rights affected “[b]ecause structural errors are ... intrinsically harmful” (internal quotation marks omitted)).

2014See Owens v. United States, 90 A.3d 1118 , 1123 n. 7 (D.C.2014) (quoting In re Taylor, 73 A.3d 85, 100 (D.C.2013)) (“[T]he alleged [instructional] error ... concerns only one element of one of the charged offenses” and does not fall into the “ ‘limited class of constitutional errors [that] qualify as structural errors’ ”).

1997It is a structural error because Juror No. 1 clearly was not impartial, but manifested, even through physical symptoms of heart palpitations, his definite bias in favor of the government. “[S]truetural defects in the constitution of the trial mechanism ... defy analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 309 , 111 S.Ct. 1246, 1264 , 113 L.Ed.2d 302 (1991); see also Lyons v. United States, 683 A.2d 1066, 1070 (D.C.1996).

1997It is a structural error because Juror No. 1 clearly was not impartial, but manifested, even through physical symptoms of heart palpitations, his definite bias in favor of the government. "[S]tructural defects in the constitution of the trial mechanism ... defy analysis by `harmless-error' standards." Arizona v. Fulminante, 499 U.S. 279, 309 , 111 S.Ct. 1246, 1264 , 113 L.Ed.2d 302 (1991); see also Lyons v. United States, 683 A.2d 1066, 1070 (D.C. 1996).

2013A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 8 , 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)).

2013A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 8 , 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)).

2013A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 8 , 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)).

2013A structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 8 , 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991)).

2024See Arthur v. United States, 986 A.2d 398, 413 (D.C. 2009) (“[I]f [an error] is structural in nature, the defendant’s substantial rights will be deemed to have been affected, without need for further analysis in the context of the particular trial.”); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997) (acknowledging, without resolving, petitioner’s argument that a structural error 16 necessarily affects substantial rights); Barrows v. United States, 15 A.3d 673, 680 (D.C. 2011) (holding that although a structural error necessarily satisfies the third prong of plain-error review, a

2002As to what constitutes a structural error, see Johnson, 520 U.S. at 468-469 , 117 S.Ct. 1544 ; Arizona v. Fulminante, 499 U.S. 279, 309-310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991).

2025See Clay, 720 F.3d at 1026 ; Trepal, 684 F.3d at 1112 ; Rosencrantz, 568 F.3d at 589 .

2024Where a trial court commits a structural error of the sort at issue in this case, however, a defendant is entitled to a new trial “regardless of the error’s actual ‘effect on the outcome.’” Weaver, 582 U.S. at 299 ; see also Clark, 301 A.3d at 265-66 (explaining that, through Geders and Perry, the Supreme Court adopted a per se rule for Geders violations “because they ‘pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic’” (quoting Perry, 488 U.S. at 276 )); Moore, 275 F.3d at 689 (reviewing a Geders violation raised on habeas and explaining that bec

2024Once a structural error of this nature occurs, it “infect[s] the entire trial process,” Brecht v. Abrahamson, 507 U.S. 619, 630 (1993), and reversal is required, whether or not the error is preserved, regardless of any circumstances or steps the court took afterward, Martin, 991 A.2d at 793, 796 (explaining that a Geders violation “requires reversal issuance, it was not clear whether the order actually rose to the level of a Geders violation.

2024Once a structural error of this nature occurs, it “infect[s] the entire trial process,” Brecht v. Abrahamson, 507 U.S. 619, 630 (1993), and reversal is required, whether or not the error is preserved, regardless of any circumstances or steps the court took afterward, Martin, 991 A.2d at 793, 796 (explaining that a Geders violation “requires reversal issuance, it was not clear whether the order actually rose to the level of a Geders violation.

2024See Martin, 991 A.2d at 796 .

2024Where a trial court commits a structural error of the sort at issue in this case, however, a defendant is entitled to a new trial “regardless of the error’s actual ‘effect on the outcome.’” Weaver, 582 U.S. at 299 ; see also Clark, 301 A.3d at 265-66 (explaining that, through Geders and Perry, the Supreme Court adopted a per se rule for Geders violations “because they ‘pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic’” (quoting Perry, 488 U.S. at 276 )); Moore, 275 F.3d at 689 (reviewing a Geders violation raised on habeas and explaining that bec

2024Cf. United States v. Cavallo, 790 F.3d 1202, 1212-13, 1218 (11th Cir. 2015) (concluding that defendant preserved his objection to a Geders violation and was entitled a new trial where trial court instructed defendant that he “could not discuss his testimony with ‘anyone,’” defendant objected, the trial court gave defendant additional time to review pertinent documents alone, and he did not object again).

2023See Greer v. United States, 141 S. Ct. 2090, 2099-2100 (2021) (holding 37 that the failure to instruct a jury as to the mens rea element does not constitute a structural error that warrants automatic reversal).

2014See Owens v. United States, 90 A.3d 1118 , 1123 n. 7 (D.C.2014) (quoting In re Taylor, 73 A.3d 85, 100 (D.C.2013)) (“[T]he alleged [instructional] error ... concerns only one element of one of the charged offenses” and does not fall into the “ ‘limited class of constitutional errors [that] qualify as structural errors’ ”).

2013I am aware that there is a difference of views on this question among some of the federal courts of appeal, ie., Johnson v. Sherry, 586 F.3d 439, 447 (6th Cir.2009) (applying structural-error presumption of prejudice to an ineffective-assistance-of-counsel claim); Owens v. United States, 483 F.3d 48, 64-65 (1st Cir.2007) (presuming prejudice when counsel’s deficient performance resulted in a structural error); McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir.1998) (same).

2013Because the right to a public trial is a structural guarantee, if the closure were unjustified or broader than necessary, prejudice would be presumed.”); Owens v. United States, 483 F.3d 48, 64 (1st Cir.2007) (“If the failure to hold a public trial is structural error, and it is impossible to determine whether a structural error is prejudicial, we must then conclude that a defendant who is seeking to excuse a procedurally defaulted claim of structural error [on the basis of ineffective assistance of counsel] need not establish actual prejudice”) (citations omitted); cf. McGurk v. Stenberg, 163

2013I am aware that there is a difference of views on this question among some of the federal courts of appeal, ie., Johnson v. Sherry, 586 F.3d 439, 447 (6th Cir.2009) (applying structural-error presumption of prejudice to an ineffective-assistance-of-counsel claim); Owens v. United States, 483 F.3d 48, 64-65 (1st Cir.2007) (presuming prejudice when counsel’s deficient performance resulted in a structural error); McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir.1998) (same).

2013Compare French v. Jones, 332 F.3d 430, 438-39 (6th Cir.2003) (holding that when counsel is absent during communication between trial court and jury, except in cases of "incidental contact,’’ this is a structural violation of the right to counsel at all critical stages of the prosecution), Ivory v. State, 351 So.2d 26, 27-28 (Fla.1977) ("Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless.”), and State v. Robin, 112 Ariz. 467 , 543 P.2d 779, 779 (1975) (“Where

2013Compare French v. Jones, 332 F.3d 430, 438-39 (6th Cir.2003) (holding that when counsel is absent during communication between trial court and jury, except in cases of "incidental contact,’’ this is a structural violation of the right to counsel at all critical stages of the prosecution), Ivory v. State, 351 So.2d 26, 27-28 (Fla.1977) ("Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless.”), and State v. Robin, 112 Ariz. 467 , 543 P.2d 779, 779 (1975) (“Where

2013Compare French v. Jones, 332 F.3d 430, 438-39 (6th Cir.2003) (holding that when counsel is absent during communication between trial court and jury, except in cases of "incidental contact,’’ this is a structural violation of the right to counsel at all critical stages of the prosecution), Ivory v. State, 351 So.2d 26, 27-28 (Fla.1977) ("Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless.”), and State v. Robin, 112 Ariz. 467 , 543 P.2d 779, 779 (1975) (“Where

2013See also Rushen, 464 U.S. at 117 n. 2, 104 S.Ct. 453 (noting that the right to counsel, "as with most constitutional rights, [is] subject to harmless error analysis ... unless the deprivation, by its very nature, cannot be harmless” (citations omitted)); United States v. Widgery, 778 F.2d 325, 329 (7th Cir.1985) ("Some deprivations of the right to counsel are in this category [of per se reversible error]....

2013See also Rushen, 464 U.S. at 117 n. 2, 104 S.Ct. 453 (noting that the right to counsel, "as with most constitutional rights, [is] subject to harmless error analysis ... unless the deprivation, by its very nature, cannot be harmless” (citations omitted)); United States v. Widgery, 778 F.2d 325, 329 (7th Cir.1985) ("Some deprivations of the right to counsel are in this category [of per se reversible error]....