In Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) the U.S. Supreme Court held that "an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Similarly, Washington v. Recuenco 548 U.S. 212, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) relied on Neder to hold that "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error."
State v. Kousounadis, (N.H., No. 2008-248, Dec. 4, 2009)
The State argues that our holding in Williams has been “implicitly overruled” by the United States Supreme Court in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). We recognize that the federal opinions we cited for guidance in Williams have been modified by subsequent decisions of the United States Supreme Court. See, e.g., Neder, 527 U.S. at 9-15 (holding that an instruction that omits an element of the offense is subject to harmless error analysis). Neder, however, has been widely criticized, and we decline to follow it with regard to our interpretation of the New Hampshire Constitution. As one commentator noted: Harmless error analysis depends upon the existence of a verdict of guilty beyond a reasonable doubt on the elements of the crime. The appellate court must assess the possibility that the error affected the jury's verdict. If there is no verdict on an element of the crime, it is not possible to conclude that the error did not affect the verdict.Carter, The Sporting Approach to Harmless Error in Criminal Cases: The Supreme Court's “No Harm, No Foul” Debacle in Neder v. United States, 28 Am. J. Crim. L. 229, 232 (2001); see also Fairfax, Harmless Constitutional Error and the Institutional Significance of the Jury, 76 Fordham L. Rev. 2027, 2030 (2008) (arguing that jury instructions that omit an element of the offense produce “flawed verdicts” that cause “profound … injury” to “the very structure of the Constitution itself” and to the jury's role in criminal trials).
As Justice Scalia pointed out in his Neder dissent, it is “structural error,” not subject to harmless error analysis, for a court to enter a directed verdict, “no matter how clear the defendant's culpability.” Neder, 527 U.S. at 32-33 (Scalia, J., dissenting). By the same token, “failure to prove one [element], no less than failure to prove all, utterly prevents conviction.” Id. at 33. The failure to instruct the jury on one element of a crime is thus indistinguishable from a directed verdict, and deprives a defendant of his right to a jury trial. See id. at 31 (explaining that “trial by jury means determination by a jury that all elements were proved”). Moreover, “[t]he very premise of structural-error review is that even convictions reflecting the ‘right’ result are reversed for the sake of protecting a basic right.” Id. at 34; see also Ayer, 150 N.H. at 24-25 (applying the federal distinction between a “structural defect” and a “trial error”).
This court “has the power to interpret the New Hampshire Constitution as more protective of individual rights than the parallel provisions of the United States Constitution.” Ball, 124 N.H. at 231-32. We reaffirm that under our State Constitution, a jury instruction that omits an element of the offense charged is an error “that partially or completely den[ies] a defendant the right to the basic trial process,” O'Leary, 153 N.H. at 714, and thus is not subject to harmless error analysis, see Williams, 133 N.H. at 634. Accordingly, we reverse the defendant's conviction on the felony criminal threatening charge and remand for further proceedings consistent with this opinion.
