Cite as: 527 U. S. 1 (1999)
Opinion of Scalia, J.
at 736) (internal quotation marks omitted). Johnson stands for the proposition that, just as the absolute right to trial by jury can be waived, so also the failure to object to its deprivation at the point where the deprivation can be remedied will preclude automatic reversal.1
Insofar as it applies to the jury-trial requirement, the structural-error rule does not exclude harmless-error analysis—though it is harmless-error analysis of a peculiar sort, looking not to whether the jury's verdict would have been the same without the error, but rather to whether the error did not prevent the jury's verdict. The failure of the court to instruct the jury properly—whether by omitting an element of the offense or by so misdescribing it that it is effectively removed from the jury's consideration—can be harmless, if the elements of guilt that the jury did find necessarily embraced the one omitted or misdescribed. This was clearly spelled out by our unanimous opinion in Sullivan v. Louisiana, supra, which said that harmless-error review "looks . . . to the basis on which 'the jury actually rested its verdict.' " 508 U. S., at 279 (quoting Yates v. Evatt, 500 U. S. 391, 404 (1991)). Where the facts necessarily found by the jury (and not those merely discerned by the appellate court) support the existence of the element omitted or mis-described in the instruction, the omission or misdescription is harmless.2 For there is then no "gap" in the verdict to
1 Contrary to Justice Stevens' suggestion, ante, at 28 (opinion concurring in part and concurring in judgment), there is nothing "internally inconsistent" about believing that a procedural guarantee is fundamental while also believing that it must be asserted in a timely fashion. It is a universally acknowledged principle of law that one who sleeps on his rights—even fundamental rights—may lose them.
2 Justice Stevens thinks that the jury findings as to the amounts that petitioner failed to report on his tax returns "necessarily included" a finding on materiality, since " 'total income' is obviously 'information necessary to a determination of a taxpayer's income tax liability.' " Ante, at 26 (emphasis added). If that analysis were valid, we could simply dispense with submitting the materiality issue to the jury in all future tax
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