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Do Two Wrongs Make a Right?


By: Mitchell Ness, Volume 101 Staff Member

On April 19th, the Supreme Court will hear arguments in Weaver v. Massachusetts.[1] The case concerns an intersection of two constitutional guarantees, the guarantee to the effective assistance of counsel and the guarantee to a fair trial.[2] In Weaver the Supreme Court has the opportunity to settle a circuit split on whether certain types of attorney errors—structural ones—are so presumptively detrimental to providing a fair trial that a new trial is automatically granted. Because it would be contrary to the aims of the two constitutional guarantees to hold otherwise, this Post urges the Court to find that structural errors can never be “harmless,” and that they therefore mandate a new trial. To fully understand why, one must first understand the concepts of the right to counsel and structural errors.


The Sixth Amendment’s guarantee of the right to counsel does not mean simply that a defendant be provided with an attorney. Instead, the Supreme Court held that the right to counsel is met only when the defendant has benefited from the “effective assistance of counsel.”[3] The Court, in so doing, recognized the importance of effective assistance in upholding the integrity of the judicial system and ensuring “just result[s]” in criminal trials.[4]

Of course, not every attorney error will violate this right. Instead, courts analyze these claims using a two-pronged test. The defendant, in requesting a new trial based on ineffective assistance, must show: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) without the claimed error, “the result of the proceeding would have been different.”[5]

This second prong is known as the “prejudice” prong.[6] It allows a reviewing court to argue that, despite the error, the underlying trial was not so affected as to warrant a new one. Defendants must prove that there was an error “sufficient to undermine confidence in the outcome.”[7] It forces a defendant to point out “how specific errors of counsel undermined the reliability of the finding of guilt.”[8]

Naturally, this is a high burden to meet. Yet it is not required in all cases of ineffective assistance. There are certain circumstances, such as state interference with counsel, counsel conflict of interest, or outright denial of counsel, in which “[p]rejudice . . . is so likely that case-by-case inquiry into prejudice is not worth the cost.”[9]


Separate and aside—for the moment—from ineffective counsel is the idea that errors happen within a trial. These errors can stem from the decisions made by any of the parties involved, particularly the judge. In general, errors within a trial are split into one of two groups, “trial” errors, and “structural” errors.[10] Most of the time, constitutional errors will fall into the trial errors category. These types of errors are defined as “occur[ing] during the presentation of the case to the jury,”[11] and include things such as evidentiary errors or defects in jury instructions.[12] These trial errors are subject to “harmless-error” analysis upon appeal, because they can be “quantitatively assessed in the context of other evidence,” and therefore do not require reversal simply because they happened.[13]

Structural errors, on the other hand, “defy analysis by ‘harmless-error’ standards.”[14] These types of errors are harder to define, but include things that “affect the framework” of the entire trial.[15] They are things like the denial of counsel, the denial to the right of self-representation, the giving of a defective reasonable-doubt instruction, or the denial of a public trial.[16] Structural errors are generally unamenable to a harmless-error analysis because their “precise effects are unmeasurable.”[17] They are therefore “so intrinsically harmful as to require automatic reversal” upon their occurrence.[18]


Weaver presents an interesting question to the Court because it combines ineffective assistance with structural error. The claim in Weaver is that, by an attorney’s failure to object to the closing of the courtroom for jury selection, the defendant was deprived of his right to the effective assistance of counsel.[19]

The interesting twist in this case is that different circuits analyze these types of claims fundamentally differently. The Weaver case, for instance, comes from an appeal of the Supreme Judicial Court of Massachusetts, which held that Weaver must meet both prongs of the ineffective assistance of counsel claim in these situations.[20] This meant that Weaver, or any similar defendant, must show that their attorney’s error—which created a structural error—must have prejudiced them in a concrete way. This holding is similar to that promulgated in the Second, Third, Fifth, and Eleventh Circuits.[21]

On the other hand, the First, Sixth, Seventh, and Eighth Circuits have all held, in some fashion, that “when counsel’s deficient performance causes a structural error,” a court should “presume prejudice.”[22] This means that a simple showing that the error occurred would allow the defendant the appropriate relief.

These are diametrically opposed viewpoints, and they reflect the inherent tension that exists at the intersection of these two doctrines. On the one hand, structural errors are errors that so undermine the credibility of a trial that they are presumed harmful to the defendant. On the other, a defendant is generally only granted a new trial due to ineffectiveness if the defendant can show that a given error was so bad that it prejudiced them. As courts are continually being confronted with this fork in the road, wildly differing opinions surface.

The Supreme Court will hopefully address the question directly, and hold that structural errors act as a presumption of prejudice in ineffective assistance claims. To hold anything else would create a loophole in the proper administration of justice. The Supreme Court has repeatedly held that structural errors are so intangible that they cannot be subject to the harmless-error analysis, and that a reviewing court “can only engage in pure speculation” when analyzing them.[23] Yet, when structural errors arise from attorney incompetence, some courts force defendants to make tangible what the Court has said it cannot. Defendants are therefore forced to persuade a reviewing court that the outcome of a trial would have been different if the error did not occur, a near impossible task.

The easiest way to look at this is through examples. The Weaver case, for instance, sees a defendant having to prove that the structural error—caused by attorney incompetence—sufficiently prejudiced him to warrant a new trial on ineffectiveness grounds. This is despite the fact that, if his attorney would have simply objected to the closing of the courtroom, the judge would have either had to agree or a reversal of any conviction would have been granted automatically.[24] Or take, for instance, a case of jury bias. The Ninth Circuit required a man to show prejudice when his attorney failed to notice that a judge used a faulty selection process. Yet, the same circuit had previously held that there was “no conceivable way to show whether there had been prejudice in this type of jury selection error.”[25]

If structural errors don’t require a showing of prejudice, as long as objected to, why should they be skimmed over because of attorney incompetence? To hold that one must show prejudice resulting from the incompetence is to stick with an overly rigid reading of the effective assistance doctrine, and to produce inequitable results. It seems to be a fundamental disservice to the right to effective assistance of counsel if that same counsel could gloss over errors that are so large that they are, if properly noticed, presumptively worthy of a reversal of conviction. How can a defendant have had effective assistance of counsel if the counsel misses errors like that?

  1. Weaver v. Massachussetts, Scotusblog, (last visited Mar. 27, 2017).
  2. See Petition for Writ of Certiorari at 1, Weaver v. Massachusetts, ___ U.S. ___ (2017) (No. 16-240), 2016 WL 4474568, at *1.
  3. Strickland v. Washington, 466 U.S. 668, 686 (1984).
  4. Id.
  5. Id. at 688, 694.
  6. Todd A. Berger, After Frye and Lafler: The Constitutional Right to Defense Counsel Who Plea Bargains, 38 Am. J. Trial Advoc. 121, 135 (2014).
  7. Id. at 694.
  8. United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).
  9. Strickland, 466 U.S. at 692.
  10. United States v. Gonzalez-Lopez, 548 U.S. 140, 148–49 (2006).
  11. Arizona v. Fulminante, 499 U.S. 279, 307 (1991).
  12. Id. at 306–07.
  13. Id. at 308.
  14. Id. at 309.
  15. Gonzalez-Lopez, 548 U.S. at 148.
  16. Id. at 149.
  17. Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).
  18. Neder v. United States, 527 U.S. 1, 8 (1999).
  19. See Commonwealth v. Weaver, 54 N.E.3d 495, 519 (Mass. 2016).
  20. See id.
  21. See Petition for Writ of Certiorari, supra note 2, at 2.
  22. McGurk v. Stenberg, 163 F.3d 470, 475 (8th Cir. 1998) (emphasis added); see also Owens v. United States, 483 F.3d 48 (1st Cir. 2007), Johnson v. Sherry, 586 F.3d 439 (6th Cir. 2009), Winston v. Boatwright, 649 F.3d 618 (7th Cir. 2011).
  23. Sullivan, 508 U.S. at 281.
  24. See Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (“[A] showing of prejudice is not necessary for reversal of a conviction not had in public proceedings” because the “benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance.”) (quotation omitted).
  25. See Amy Knight Burns, Note, Insurmountable Obstacles: Structural Errors, Procedural Default, and Ineffective Assistance, 64 Stan. L. Rev. 727, 728 (2012).