Per Se Reversible Errors Are Limited to Those Errors Which Are So Basic That Their Infraction Can Never Be Treated As Harmless Error
In State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986), the Court recognized that a rule of per se reversible error is a "draconian measure."
Rejecting the view that the constitutional violation at issue in DiGuilio required such a rule of per se reversal, we unequivocally held that "per se reversible errors are limited to those errors which are 'so basic to a fair trial that their infraction can never be treated as harmless error.'" Id. at 1135 (emphasis added) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).
The Court further acknowledged the high cost of improperly categorizing a type of error as "per se reversible": "If an error which is not always harmful is improperly categorized as per se reversible, the court will erroneously reverse an indeterminate number of convictions where the error was harmless." Id.
As indicated by our reliance on Chapman, our understanding of per se reversible error in DiGuilio was rooted in the federal law concerning constitutional error.
The United States Supreme Court has repeatedly recognized that even constitutional errors are ordinarily subject to harmless-error analysis.
Only constitutional errors that "necessarily render a trial fundamentally unfair" can be held to "require reversal without regard to the evidence in the particular case." Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).
"Harmless-error analysis . . . presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury." Id. at 578.
Accordingly, the denial of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), or the presence of a biased adjudicator, see Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 (1927), are "errors that could never be harmless." Rose, 478 U.S. at 578 n.6.
Per se reversal is an appropriate response to the absence of the "basic protections" without which a "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." Id. at 577-78.
But such errors that require reversal automatically "are the exception and not the rule." Id. at 578. Indeed, the Supreme Court has articulated a presumption against per se reversal:
"If the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Id. at 579.
The Supreme Court has identified errors "which defy analysis by 'harmless-error standards'" as errors which result in "structural defects in the constitution of the trial mechanism"--"structural defects affecting the framework within which the trial proceeds, rather than simply an error in the trial process." Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).
The unlawful exclusion of members of the defendant's race from a grand jury, see Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986), the denial of the right to self-representation at trial, see McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984), and the denial of the right to public trial, see Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), are examples of structural defects not subject to harmless-error analysis. Fulminante, 499 U.S. at 310.
Given the nature of such structural error, it is not surprising that the Supreme Court has "found an error to be 'structural,' and thus subject to automatic reversal, only in a 'very limited class of cases.'" Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)).
The Supreme Court has repeatedly rejected claims that various errors were not subject to harmless-error analysis. See, e.g., Washington v. Recuenco, 548 U.S. 212, 221-22, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (holding that failure to submit a sentencing factor to the jury was not a structural error and thus was subject to harmless-error review); Neder, 527 U.S. at 10 (holding that trial court's error in omitting an element of a crime from the jury instructions was subject to harmless-error analysis); Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (holding that improper denial of a defendant's right to impeach a witness under the Confrontation Clause was subject to harmless-error analysis); United States v. Hasting, 461 U.S. 499, 505, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (holding that prosecutor's improper comments about defense's failure to present evidence were subject to harmless-error analysis).