Cite as: 527 U. S. 1 (1999)
Opinion of Scalia, J.
Asserting that "[u]nder our cases, a constitutional error is either structural or it is not," ante, at 14, the Court criticizes the Sullivan test for importing a "case-by-case approach" into the structural-error determination. If that were true, it would seem a small price to pay for keeping the appellate function consistent with the Sixth Amendment. But in fact the Court overstates the cut-and-dried nature of identifying structural error. Some structural errors, like the complete absence of counsel or the denial of a public trial, are visible at first glance. Others, like deciding whether the trial judge was biased or whether there was racial discrimination in the grand jury selection, require a more fact-intensive inquiry. Deciding whether the jury made a finding "functionally equivalent" to the omitted or misdescribed element is similar to structural-error analysis of the latter sort.
III
The Court points out that all forms of harmless-error review "infringe upon the jury's factfinding role and affect the jury's deliberative process in ways that are, strictly speaking, not readily calculable." Ante, at 18. In finding, for example, that the jury's verdict would not have been affected by the exclusion of evidence improperly admitted, or by the admission of evidence improperly excluded, a court is speculating on what the jury would have found. See, e. g., Arizona v. Fulminante, 499 U. S., at 296 (Would the verdict have been different if a coerced confession had not been introduced?); Delaware v. Van Arsdall, 475 U. S. 673, 684 (1986) (Would the verdict have been different if evidence had not been unconstitutionally barred from admission?). There is no difference, the Court asserts, in permitting a similar speculation here. Ante, at 18.
If this analysis were correct—if permitting speculation on whether a jury would have changed its verdict logically demands permitting speculation on what verdict a jury would have rendered—we ought to be able to uphold directed ver-
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