structural error in Colorado

2021People v. Abu-Nantambu-El, 2019 CO 106, ¶ 24 ; People v. Novotny, 2014 CO 18, ¶¶ 26, 27 . 23 and Neder v. United States, 527 U.S. 1, 8-15 (1999), among other cases. ¶ 44 So the question becomes: Does Stirone or any other controlling authority hold that allowing a constructive amendment is a structural error?

2018But the facts of this case lead me to conclude that the error improperly affected the structure of the trial itself. ¶ 115 Structural error is “so intrinsically harmful as to require automatic reversal.” Neder v. United States, 527 U.S. 1, 7 (1999); see also Blecha v. People, 962 P.2d 931 (Colo. 1998).

2024In particular, we noted that in People v. Novotny , 2014 CO 18, ¶ 21, 320 P.3d 1194, 1201, we indicated that we had largely come to accept the structural error/trial error dichotomy that the Supreme Court had developed.

2024In particular, we noted that in People v. Novotny , 2014 CO 18, ¶ 21, 320 P.3d 1194, 1201, we indicated that we had largely come to accept the structural error/trial error dichotomy that the Supreme Court had developed.

2025Id. at 294- 96, 299. ¶ 31 The Court then considered the effect of raising a structural error argument through a postconviction ineffective assistance claim and the petitioner’s related interpretation of Strickland that, “even if there is no showing of a reasonable probability of a different outcome, relief still must be granted if the convicted person shows 13 that attorney errors rendered the trial fundamentally unfair.” Id. at 300 . ¶ 32 The Court did not adopt this reading of Strickland but said that, “[f]or the analytical purposes of this case,” it would “assume that petitioner’s interpret

2025Id. at 294- 96, 299. ¶ 31 The Court then considered the effect of raising a structural error argument through a postconviction ineffective assistance claim and the petitioner’s related interpretation of Strickland that, “even if there is no showing of a reasonable probability of a different outcome, relief still must be granted if the convicted person shows 13 that attorney errors rendered the trial fundamentally unfair.” Id. at 300 . ¶ 32 The Court did not adopt this reading of Strickland but said that, “[f]or the analytical purposes of this case,” it would “assume that petitioner’s interpret

2018But the facts of this case lead me to conclude that the error improperly affected the structure of the trial itself. ¶ 115 Structural error is “so intrinsically harmful as to require automatic reversal.” Neder v. United States, 527 U.S. 1, 7 (1999); see also Blecha v. People, 962 P.2d 931 (Colo. 1998).

2002The Trial Judge's Failure To Disclose The Conflict And, If Requested, Recuse Himself Requires Reversal Of Julien's Conviction In my view, the failure of the judge in this case to disclose his prosecutorial ties to the defendant, and to disqualify himself if so requested, must be characterized as "structural error." Structural error is defined as error that "affect[s] the framework within which the trial proceeds." Blecha v. People, 962 P.2d 931, 942 (Colo.1998) (internal quotation marks removed).

2008Neder v. United States, 527 U.S. 1, 7-9 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999); see Dunlap, 975 P.2d at 737 (the nature of a structural error is that its effect is "necessarily unquantifiable and indeterminate"); Bogdanov v. People, 941 P.2d 247, 252 (Colo.) (same), amended, 955 P.2d 997 (Colo.1997).

1999A structural error may not be assessed in the context of the evidence presented, for its consequences are "necessarily unquantifiable and indeterminate." Bogdanov, 941 P.2d at 253 .

2020Id. 5 ¶58 “[T]he defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).

2004Another difference between Gideon and Crawford is that the total deprivation of the right to counsel in violation of Gideon is a structural error constituting a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." See Johnson v. United States, 520 U.S. 461, 468 , 117 S.Ct. 1544, 1549 , 137 LEd.2d 718 (1997)(quoting Arizona v. Fulimimnante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 118 L.Ed.2d 302 (1991)(total deprivation of the right to counsel requires automatic reversal).

2026We deemed this structural error because the verdict "failed to evidence a unanimous jury determination that the defendant committed all the elements and was guilty of a crime." Id. at ¶ 15, 325 P.3d at 558 .

2020Hoggard’s conviction for second degree forgery must be reversed because the error here was plain, Rediger, ¶ 54, 416 P.3d at 904 , and resulted in entry of a judgment of conviction for an offense not supported by the jury’s verdict, Sanchez v. People, 2014 CO 29, ¶ 19 , 325 P.3d 553, 560 (“[T]he entry of a judgment of conviction for a crime not supported by a unanimous verdict beyond a reasonable doubt rises to the level of structural error, requiring reversal regardless of a sufficiently specific objection.”).

2008Neder, 527 U.S. at 8-15 , 119 S.Ct. 1827 (applying harmless error analysis); Griego, 19 P.3d at 7-8 ; see Johnson, 520 U.S. at 468 , 117 S.Ct. 1544 (applying plain error review to the omission of an element of a charge where the defendant failed to object contemporaneously).

2004See Griego v. People, 19 P.3d 1 (Colo. 2001)(when a trial court misinstructs the jury on an element of an offense, the error is not reviewable under the structural error standard).

2019Much as the Supreme Court had done in disavowing its earlier pronouncements from Swain v. Alabama, 380 U.S. 202, 219 (1965), and those cases on which it relied, see Rivera, 556 U.S. at 160 ; Martinez-Salazar, 528 U.S. at 317 n.4, we overturned this line of our own precedents as having been substantially undermined by developments in the harmless-error doctrine in general, and the structural error/trial error dichotomy in particular, Novotny, ¶ 17, 320 P.3d at 1200 .

2014While we do not imply today that every violation of our statutes and rules prescribing the use of peremptory challenges must be disregarded as harmless, we are nevertheless unwilling to conclude that such violations of state law, as distinguished from an actual Sixth Amendment violation or those committed in other than good faith, see id. at 160, 129 S.Ct. 1446 ; see also Martinez, Salazar, 528 U.S. at 316-17 , 120 S.Ct. 774 , rise to the level of structural error. 1 124 We are not unmindful that our holding today expressly overturns a bright-line rule initially imposed more than two decades a

2019But the United States Supreme Court has recognized that structural error occurs “[o]nly in rare cases.” Washington v. Recuenco, 548 U.S. 212, 218-19 (2006). ¶ 37 We conclude that structural error does not apply to civil cases such as this one because “neither the United States Supreme Court nor the Colorado Supreme Court has extended the structural error 14 analysis to civil cases.” People in Interest of R.D., 2012 COA 35, ¶ 31 (termination of parental rights in the context of a dependency and neglect case); see also Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24 (“No concept of ‘structural

2012In such cases, the error `necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.'" Recuenco, 548 U.S. at 218-19 , 126 S.Ct. 2546 (footnote omitted) ( quoting Neder v. United States, 527 U.S. 1, 9 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999)). ¶ 31 Because neither the United States Supreme Court nor the Colorado Supreme Court has extended the structural error analysis to civil cases, we do not do so here. ¶ 32 Nevertheless, we conclude that the erroneous denial of the respondent parent's right to counsel during a substantial part of

2025See, e.g., People v. Carter, 2021 COA 29, ¶ 25 (concluding that the defendant waived his due process claim arising from a constructive amendment). ¶ 16 Indeed, even a structural error — i.e., an error that so interferes with the fundamental fairness of the trial process itself that reversal is mandated without a showing of prejudice, see People v. Lopez, 2024 CO 50 , ¶ 3 — can be waived.

2024Compare People v. Rail , 2016 COA 24, ¶ 50, 457 P.3d 608, 617 ("A constructive amendment is per se reversible."), and People v. Foster , 971 P.2d 1082, 1087 (Colo.App. 1998) ("A variance that broadens an indictment constitutes a constructive amendment and is reversible per se."), with People v. Carter , 2021 COA 29 , ¶¶ 14, 48-57, 486 P.3d 473, 477, 483-84 (concluding that "a constructive amendment isn't a structural error" and then reviewing the defendant's unpreserved constructive error claim for plain error), and People v. Garcia , 2023 COA 58, ¶¶ 45-49, 536 P.3d 847, 856-57 (same).

2025See Erlinger, 602 U.S. at 835 (describing Erlinger as “on all fours” with Apprendi and Alleyne); see also People v. Mountjoy, 2016 COA 86, ¶¶ 14-15 (collecting cases and noting that both “a majority of the federal circuits” and “[m]any state appellate courts” have consistently applied harmless error review to Apprendi/Blakely errors), aff’d, 2018 CO 92M ; Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008) (reviewing Blakely error for constitutional harmlessness). ¶ 10 Despite this longstanding precedent, Fields argues that structural error applies because the Erlinger Court quoted a struct

2003We disagree. *473 - Structural error applies to "structural defects" in a criminal trial that affect "the entire conduct of the trial from beginning to end" such that the "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence." People v. - Price, - 969 - P.2d - 766, - 768-69 (Colo.App.1998)(quoting Rose v. Clark, 478 U.S. 570, 577-78 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460, 470 (1986)).

2024But in so doing, the Court noted that the case before it did not involve any assertion that the trial court "deliberately misapplied the law in order to force the defendants to use a peremptory challenge to correct the court's error." Id. at 316 (citation omitted) (citing Ross , 487 U.S. at 91 n.5). 21 ¶41 Novotny thus contemplated two ways an erroneous denial of a for-cause challenge might rise to the level of structural error: (1) where the error resulted in a Sixth Amendment violation because the biased juror actually served on the jury, and (2) where the error involved a deliberate misappl

2024But in so doing, the Court noted that the case before it did not involve any assertion that the trial court "deliberately misapplied the law in order to force the defendants to use a peremptory challenge to correct the court's error." Id. at 316 (citation omitted) (citing Ross , 487 U.S. at 91 n.5). 21 ¶41 Novotny thus contemplated two ways an erroneous denial of a for-cause challenge might rise to the level of structural error: (1) where the error resulted in a Sixth Amendment violation because the biased juror actually served on the jury, and (2) where the error involved a deliberate misappl

2019Water Conservation Dist., 74 P.3d 462, 473 (Colo. App. 2003)(quoting People v. Price, 969 P.2d 766, 768-69 (Colo. App. 1998)).

2010See Black v. Southwestern Water Conservation Dist., 74 P.3d 462, 473 (Colo.App.2003).

2023A structural error is one that “require[s] automatic reversal without individualized analysis of how the error impairs the reliability of the judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 10 , 288 P.3d 116, 119 .

2023A structural error is one that “require[s] automatic reversal without individualized analysis of how the error impairs the reliability of the judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 10 , 288 P.3d 116, 119 .

2017In Johnson v. United States, 520 U.S. 461 (1997), the Supreme Court rejected an argument that an alleged structural error was not subject to plain error review, saying, “the seriousness of the error claimed does not remove consideration of it from the ambit of [Fed.

2004Another difference between Gideon and Crawford is that the total deprivation of the right to counsel in violation of Gideon is a structural error constituting a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." See Johnson v. United States, 520 U.S. 461, 468 , 117 S.Ct. 1544, 1549 , 137 LEd.2d 718 (1997)(quoting Arizona v. Fulimimnante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 118 L.Ed.2d 302 (1991)(total deprivation of the right to counsel requires automatic reversal).

2025As applied to jury instructions, plain error requires “not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed 16 to [the defendant’s] conviction.” Miller, 113 P.3d at 750 (quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)).2 B.

2007See People v. Miller, 113 P.3d 743, 749 (Colo.2005) (citing Neder v. United States, 527 U.S. 1 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999).

2025Stackhouse v. People, 2015 CO 48, ¶ 8 .

2016Conclusion ¶77 Rail’s judgment of conviction is affirmed. 1 The prosecution also presented evidence concerning a second victim, but the jury acquitted Rail of those charges. 2 Cf. Stackhouse v. People , 2015 CO 48, ¶¶5-10 (concluding that the defendant waived his right to a public trial — denial of which is a structural error — by failing to object when court closed the courtroom during jury selection). 3 For that matter, not all inconsistent verdicts are subject to reversal at all.

2024Id. at ¶¶ 19-21, 426 P.3d at 341. ¶119 In my view, our foregoing analysis in James made abundantly clear that our prior presumption of prejudice standard had turned out to be incorrect and that the proper standard was to review under a structural error/trial error dichotomy, under which the former requires reversal but the latter does not, absent a showing of prejudice (i.e., that the error was not harmless).

2024Id. at ¶¶ 19-21, 426 P.3d at 341. ¶119 In my view, our foregoing analysis in James made abundantly clear that our prior presumption of prejudice standard had turned out to be incorrect and that the proper standard was to review under a structural error/trial error dichotomy, under which the former requires reversal but the latter does not, absent a showing of prejudice (i.e., that the error was not harmless).

2019James v. People , 2018 CO 72 , ¶ 15, 426 P.3d 336 , 339-40 (citing Weaver v. Massachusetts , --- U.S. ----, 137 S. Ct. 1899 , 1908, 198 L.Ed.2d 420 (2017) ; United States v. Gonzalez-Lopez , 548 U.S. 140 , 148, 150, 157, 126 S.Ct. 2557 , 165 L.Ed.2d 409 (2006) ); People v. Novotny , 2014 CO 18 , ¶ 21, 320 P.3d 1194 , 1201 ("[Structural error] comprehends only those defects affecting the framework within which the trial proceeds-errors that infect the entire trial process and necessarily render a trial fundamentally unfair-rather than simply errors in the trial process itself." (emphasis added)

2019James v. People , 2018 CO 72 , ¶ 15, 426 P.3d 336 , 339-40 (citing Weaver v. Massachusetts , --- U.S. ----, 137 S. Ct. 1899 , 1908, 198 L.Ed.2d 420 (2017) ; United States v. Gonzalez-Lopez , 548 U.S. 140 , 148, 150, 157, 126 S.Ct. 2557 , 165 L.Ed.2d 409 (2006) ); People v. Novotny , 2014 CO 18 , ¶ 21, 320 P.3d 1194 , 1201 ("[Structural error] comprehends only those defects affecting the framework within which the trial proceeds-errors that infect the entire trial process and necessarily render a trial fundamentally unfair-rather than simply errors in the trial process itself." (emphasis added)

2018See, e.g., Sanchez v. People, 2014 CO 29, ¶ 18 (“[T]he entry of a judgment of conviction for a crime not supported by a unanimous verdict beyond a reasonable doubt rises to the level of structural error.”); Medina v. People, 163 P.3d 1136, 1141 (Colo. 2007) (“Instead of receiving an impartial jury verdict convicting her of all elements beyond a reasonable doubt, the trial court essentially judged Medina guilty of a new and different crime.”). ¶ 12 Alternatively, the Attorney General argues that either we should conclude that Oliver personally waived this right on the existing record or the que

2014Sullivan, 508 U.S. at 279-80 , 118 S.Ct. 2078 ; Medina, 163 P.3d at 1141 .

1998Structural error analysis applies to “structural defects” in the trial which affect “the entire conduct of the trial from beginning to end.” Examples of such include the absence of defense counsel, Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); a biased adjudicator, Tumey v. Ohio, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927); the unlawful exclusion of members of the defendant’s race from the grand jury, Vasquez v. Hillery, 474 U.S. 254 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986); and the right to a public trial, Waller v. Georgia, 467 U.S. 39 , *769 104 S.Ct. 2210 ,

1998Structural error analysis applies to “structural defects” in the trial which affect “the entire conduct of the trial from beginning to end.” Examples of such include the absence of defense counsel, Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); a biased adjudicator, Tumey v. Ohio, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927); the unlawful exclusion of members of the defendant’s race from the grand jury, Vasquez v. Hillery, 474 U.S. 254 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986); and the right to a public trial, Waller v. Georgia, 467 U.S. 39 , *769 104 S.Ct. 2210 ,

2026People v. Bergerud, 223 P.3d 686, 696 (Colo. 2010); Hagos v. People, 2012 CO 63, ¶ 10 . 3.

2025See Erlinger, 602 U.S. at 835 (describing Erlinger as “on all fours” with Apprendi and Alleyne); see also People v. Mountjoy, 2016 COA 86, ¶¶ 14-15 (collecting cases and noting that both “a majority of the federal circuits” and “[m]any state appellate courts” have consistently applied harmless error review to Apprendi/Blakely errors), aff’d, 2018 CO 92M ; Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008) (reviewing Blakely error for constitutional harmlessness). ¶ 10 Despite this longstanding precedent, Fields argues that structural error applies because the Erlinger Court quoted a struct

2025See Erlinger, 602 U.S. at 835 (describing Erlinger as “on all fours” with Apprendi and Alleyne); see also People v. Mountjoy, 2016 COA 86, ¶¶ 14-15 (collecting cases and noting that both “a majority of the federal circuits” and “[m]any state appellate courts” have consistently applied harmless error review to Apprendi/Blakely errors), aff’d, 2018 CO 92M ; Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008) (reviewing Blakely error for constitutional harmlessness). ¶ 10 Despite this longstanding precedent, Fields argues that structural error applies because the Erlinger Court quoted a struct

2025See Erlinger, 602 U.S. at 835 (describing Erlinger as “on all fours” with Apprendi and Alleyne); see also People v. Mountjoy, 2016 COA 86, ¶¶ 14-15 (collecting cases and noting that both “a majority of the federal circuits” and “[m]any state appellate courts” have consistently applied harmless error review to Apprendi/Blakely errors), aff’d, 2018 CO 92M ; Villanueva v. People, 199 P.3d 1228, 1231 (Colo. 2008) (reviewing Blakely error for constitutional harmlessness). ¶ 10 Despite this longstanding precedent, Fields argues that structural error applies because the Erlinger Court quoted a struct