Federal courts guarantee the right to a fair, but not to an error-free, trial. When an error occurs, courts must balance the benefit of correcting the error against the judicial system’s interests in efficiency (including minimizing the costs of a retrial) and finality (including maintaining public confidence in judicial decisions). Traditionally, efficiency and finality have carried less weight than fairness in the criminal context because criminal sanctions may result in imprisonment and greater social stigma than civil sanctions. Yet, even in criminal cases, some constitutional errors are harmless and do not justify reversal of the trial outcome. The category of errors known as trial errors can be harmless if the government can show beyond a reasonable doubt that they did not contribute to the verdict. Other errors, called structural errors, are so damning to the fairness of a trial that they warrant automatic reversal. Structural errors account for a small subset of all errors, and even most constitutional errors are trial errors, subject to harmless error review.

This Comment examines the concept of structural error and the merit of classifying one particular error—constructive amendment of an indictment—as a structural error. Constructive amendment “occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury.”

Supreme Court doctrine provides a reasonable foundation for finding that constructive amendment is a structural error. Nonetheless, the Court’s understandable hesitance to expand the category of structural errors, as well as the malleability of the structural error doctrine, makes it more likely that constructive amendment will be classified as a trial error.