What Is Structural Error?

In a criminal trial one of the attorneys can do something that is considered structural error.

Structural error is the kind of trial mistake that is so bad that the appellate court automatically reverses the conviction even if the defendant can’t necessarily show any prejudice.

Any attorney who fancies her or himself a trial attorney has to have a rough idea on exactly what is considered to be structural error.

Plain Error

We need to take one step back to put this kind of error into context.

You see, in an appeal, sometimes a criminal defendant doesn’t procedurally take all the required steps to preserve a trial issue for an appeal. Normally, in an appeal a party is asking the appellate court to review a claim of error that happened in the lower court.

If a defendant never claims any error then there is nothing to appeal.

Except, the appellate court does recognize a kind of error it calls plain error. When a defendant does not procedurally claim error correctly an appellate court will still reverse a conviction under plain error if the error was…

(1) A clear or obvious error and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or 
(2) A clear or obvious error and the error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.

See Episode 351 – People v. Sebby, 2017 IL 119445 (June). (Duration 9:25) (Illinois Supreme Court fine tunes plain error)

Structural Error Is Second Prong Plain Error

You can see, that when we are talking about structural error we really mean “second prong” plain error. Structural error is really just second prong plain error.

Error that is so bad that it affects the fairness of the trial and challenges the integrity of the judicial process is structural error.

That is some bad stuff.

Every trial attorney should seek to avoid it.

Constitutional Error Is Not Structural Error

To begin with we should note that not all trial error is considered structural error. Even full blown easily recognized constitutional error does not  necessarily equate as being structural error. See People v. Shaw, 186 Ill. 2d 301, 344-45 (1999).

Structural error is its own class of “bad”. The Supreme Court has recognized an error as structural only in a very limited class of cases. See People v. Glasper, 234 Ill.2d 173, 917 N.E.2d 401 (June 2009), quoting Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.E.d.2d 35, 46 (1999); Johnsons v. United States, 520 U.S. 461, 468-49, 117 S.Ct. 1544, 1549-50, 137 L.E.2d 718, 728 (1997). Washington v. Recuenco, 548 U.S. 212, 218, 126 S.Ct. 2546, 2551, 165 L.Ed.2d 466, 474 (2006).

Those cases include a

  • Complete denial of counsel
  • Trial before a biased judge
  • Racial discrimination in the selection of a grand jury
  • Denial of self-representation at trial
  • Denial of a public Trial 
  • A defective reasonable doubt instruction

See The Following Illinois Cases Recognizing Structural Error

Examples Of What IS NOT Considered Structural Error

  • Failure to instruct on the Zehr principles – People v. Thompson, 238 Ill. 2d 598, 609 (2010) (An error is structural “only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.”); see also People v. Dismuke, 2017 IL App (2d) 141203 (June). Episode 361 (Duration 8:30) (Zehr principles are royal screwed up leading to a reversal under plain error.); and People v. Belknap, 2014 IL 117094 (December) (failure of the trial court to get the Zehr admonishments right is not strictly plain error). 
  • Failure to instruct the jury on an essential element of the crime – Episode 368 – People v. Thompson, 2017 IL App (5th) 120079-B (May). (Duration 6:27) (attempt instruction was missing the language on taking “a substantial step” but no prejudice to defendant shown)
  • Wrong and innaccurate information by trial counsel before a plea – Episode 436 – People v. Brown, 2017 IL 121681 (November). (Duration 5:41) (Defendant took a plea because his attorney told him he would serve 50% of the time. It was an 85% case which added 6 years to his “in” time.)
  • Wrong immigration information before a plea – Episode 272 – People v. Valdez, 2016 IL 119860.(Duration 41:18) (petitioner must convince the court that a decision to reject the plea bargain would have been rational had counsel advised him accurately on the deportation consequences of pleading guilty)
  • Judge falls asleep during trial – Episode 699 – People v. Sheley, 2017 IL App (3d) 140659 (October). (Duration 14:30) (a judge briefly falling asleep for a portion of a trial does not rise to the level of structural error)
  • Locking the courtroom doors to answer one jury question after trial is done – Episode 502 – People v. Gore, 2018 IL App (3d) 150627 (April). (Duration 6:36) (not structural error judge locks the doors during a jury question)