468
Opinion of the Court
Court and from the Courts of Appeals held that course proper.1 Petitioner, on the other hand, urges that such a rule would result in counsel's inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent. We agree with petitioner on this point, and hold that in a case such as this—where the law at the time of trial was settled and clearly contrary to the law at the time of appeal—it is enough that an error be "plain" at the time of appellate consideration. Here, at the time of trial it was settled that the issue of materiality was to be decided by the court, not the jury; by the time of appellate consideration, the law had changed, and it is now settled that materiality is an issue for the jury. The second part of the Olano test is therefore satisfied.
C
But even though the error be "plain," it must also "affec[t] substantial rights." It is at this point that petitioner's argument that the failure to submit an element of the offense to the jury is "structural error" becomes relevant. She contends in effect that if an error is so serious as to defy harmless-error analysis, it must also "affec[t] substantial rights." A "structural" error, we explained in Arizona v. Fulminante, is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself," 499 U. S., at 310. We have found structural errors only in a very limited class of cases: See Gideon
1 See United States v. Corsino, 812 F. 2d 26, 31, n. 3 (CA1 1987); United States v. Bernard, 384 F. 2d 915, 916 (CA2 1967); United States v. Greber, 760 F. 2d 68, 73 (CA3 1985); Nilson Van & Storage Co. v. Marsh, 755 F. 2d 362, 367 (CA4 1985); United States v. Hausmann, 711 F. 2d 615, 616-617 (CA5 1983); United States v. Chandler, 752 F. 2d 1148, 1150-1151 (CA6 1985); United States v. Brantley, 786 F. 2d 1322, 1327, and n. 2 (CA7 1986); United States v. Hicks, 619 F. 2d 752, 758 (CA8 1980); United States v. Daily, 921 F. 2d 994, 1004 (CA10 1990); United States v. Lopez, 728 F. 2d 1359, 1362, n. 4 (CA11 1984); United States v. Hansen, 772 F. 2d 940, 950 (CADC 1985).
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