State v. Camacho, 218 N.J. 533 (2014). It is an error “of constitutional dimension” for a trial judge in a criminal case to fail to instruct the jury that it could not draw an adverse inference from the defendant’s decision not to testify at trial, despite the defendant’s request that such a charge be given. That error occurred here. The issue was whether that error should always be considered reversible error, or whether it could be considered harmless, so that defendant’s conviction for second-degree eluding should be upheld regardless. In a unanimous opinion written by Justice Fernandez-Vina, the Supreme Court concluded that the error could be considered harmless error and that, in the circumstances of this case, it was in fact harmless. That ruling reversed the Appellate Division, which had ruled that this error is always harmful and mandates reversal in every case.
The Court relied heavily on precedents from the Supreme Court of the United States. After tracing that Court’s decisions regarding no adverse inference charges, Justice Fernandez-Vina focused on the distinction that the Supreme Court of the United States established between “trial errors” and “structural errors.”
A “trial error” is one that “occurred during the presentation of the case to the jury and therefore may be qualitatively assessed in the context of other evidence presented in order to determine whether it was harmless beyond a reasonable doubt.” A “structural error,” in contrast, “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself.”
The Supreme Court of the United States, Justice Fernandez-Vina stated, has found structural error “only in a very limited class of cases,” such as being tried before a biased judge, being deprived of counsel or of a public trial, or allowing the use of a coerced confession. Structural errors are “so intrinsically harmful” that they defy harmless error analysis. Trial errors, however, are subject to harmless error review. Most errors, and even “most constitutional errors[,] can be harmless.”
“Importantly, the United States Supreme Court has not characterized the failure to provide a jury instruction as a structural defect.” Justice Fernandez-Vina held that the failure to give a no adverse inference charge “concerns the evidentiary value the jury may give to a defendant’s election not to testify on his or her own behalf. Therefore, it is a trial error that has an effect that may ‘be qualitatively assessed in the context of other evidence presented in order to determine whether it was harmless beyond a reasonable doubt.'”
The Appellate Division had relied on State v. Oliver, 133 N.J. 141 (1993), and State v. Haley, 295 N.J. Super. 471 (App. Div.1996). Justice Fernandez-Vina stated that the panel had misinterpreted Oliver. And, to the extent that Haley stood for the proposition that failure to give a no adverse inference charge upon request invariably requires reversal, the Court overturned that decision.
Justice Fernandez-Vina went on to find that this error was harmless here. There was “overwhelming evidence” of defendant’s guilt on the eluding charge. Defense counsel had not taken exception to the failure to give the requested no adverse inference charge, so the plain error rule applied. Under all those circumstances, the error in the jury charge was harmless and the conviction was upheld.