State v. Henley
In State v. Henley, 141 Ariz. 465, 469, 687 P.2d 1220, 1224 (1984), the Arizona Supreme Court agreed with the defendant that a twelve-person jury was required yet not provided. Id.
The court noted that the defendant failed to object to the eight-person jury. Id.
Instead of proceeding to a structural error or automatic reversal mode of analysis, the court applied a traditional fundamental error analysis. Id.
It expressly stated that "fundamental error need not be reversible when there is substantial evidence in the record to support the verdict and it can be said that the error did not, beyond a reasonable doubt, contribute significantly to the verdict." Id.
The court expressly found that "the harmless error doctrine is an appellate court doctrine to be applied when fundamental error has been committed in the trial court, and the error, though fundamental, is harmless beyond a reasonable doubt." Id
The supreme court then continued its analysis and held:
Because we cannot say beyond a reasonable doubt that the error did not significantly contribute to the defendant's conviction, the error is also harmful. We cannot predict, for example, whether four additional jurors would have found defendant Henley guilty beyond a reasonable doubt. Id.