Cite as: 527 U. S. 1 (1999)
Opinion of Scalia, J.
error (not susceptible of "harmless-error" analysis) to " 'vitiat[e] all the jury's findings.' " Ante, at 11 (quoting Sullivan v. Louisiana, 508 U. S. 275, 281 (1993)). A court cannot, no matter how clear the defendant's culpability, direct a guilty verdict. See Carpenters v. United States, 330 U. S. 395, 410 (1947); Rose v. Clark, 478 U. S. 570, 578 (1986); Arizona v. Fulminante, 499 U. S. 279, 294 (1991) (White, J., dissenting). The question that this raises is why, if denying the right to conviction by jury is structural error, taking one of the elements of the crime away from the jury should be treated differently from taking all of them away—since failure to prove one, no less than failure to prove all, utterly prevents conviction.
The Court never asks, much less answers, this question. Indeed, we do not know, when the Court's opinion is done, how many elements can be taken away from the jury with impunity, so long as appellate judges are persuaded that the defendant is surely guilty. What if, in the present case, besides keeping the materiality issue for itself, the District Court had also refused to instruct the jury to decide whether the defendant signed his tax return? See 26 U. S. C. § 7206(1). If Neder had never contested that element of the offense, and the record contained a copy of his signed return, would his conviction be automatically reversed in that situation but not in this one, even though he would be just as obviously guilty? We do not know. We know that all elements cannot be taken from the jury, and that one can. How many is too many (or perhaps what proportion is too high) remains to be determined by future improvisation. All we know for certain is that the number is somewhere between tuppence and 19 shillings 11, since the Court's only response to my assertion that there is no principled distinction between this case and a directed verdict is that "our course of constitutional adjudication has not been characterized by this 'in for a penny, in for a pound' approach." See ante, at 17, n. 2.
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