Two kinds of errors may infect a criminal trial—trial errors and structural errors.1 Whereas the standards for appellate review of trial errors are well known and the subject of numerous cases, the standards for review of structural error are less well delineated. Not only are there fewer structural error cases than there are trial error cases, but several U.S. Court of Appeals for the Second Circuit cases involving structural errors appear to establish a standard on appeal that is in tension with the standard established by the U.S. Supreme Court and that leaves many questions as to its application.
Review of Trial Errors
Most errors related to criminal cases—including, for example, the vast majority of evidentiary errors, errors in jury instructions, errors related to discovery or guidelines calculations—are trial errors. Appellate review of trial errors depends on whether they were preserved below. If so, then the court applies “harmless error analysis,” in which it first determines whether the error was constitutional. If the error was constitutional, then the court must determine whether the error was harmless beyond a reasonable doubt.2 If the error is not constitutional, then the question is simply whether “there is ‘fair assurance’ that the jury’s ‘judgment was not substantially swayed by the error.’”3
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