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State v. Hill7/5/2001
ellee mentions, are very important and basic rights. However, we decline to hold that structural error is present in every situation in which those fundamental rights are allegedly limited in any way. We note that appellee's trial was open to the public and that newspaper reporters were present.
Appellee's failure to express any disagreement whatsoever at trial to the use of an anonymous jury is the key factor that distinguishes this case from the federal cases on juror anonymity cited by appellee. In many of those cases, juror anonymity was contested at trial, and the trial courts decided to use anonymous juries after being made aware of the defendants' protestations that fundamental rights were being compromised.
Due to appellee's failure to raise the anonymity issue at trial, we decline to consider the propriety of the anonymous-jury local rule, even though we recognize that the rule implicates important concerns that would clearly be worthy of review by this court if the issue had been properly presented. See Work v. State (1853), 2 Ohio St. 296, 303 ("the right of trial by jury * * * justly demands our jealous scrutiny when innovations are attempted to be made upon it").
At its heart, the concept behind structural error is that certain errors are so fundamental that they obviate the necessity for a reviewing court to do a harmless-error analysis. However, it is arguable whether the harmless-error/structural-error distinction discussed in cases such as Neder (in which an objection was lodged) should also apply to a plain-error case in which no objection was raised at trial. In Johnson v. United States, 520 U.S. at 466, 117 S.Ct. at 1548, 137 L.Ed.2d at 727, a case in which a criminal defendant argued that an unobjected-to error was structural, and therefore outside the plain-error strictures of Fed.R.Crim.P. 52(b), the United States Supreme Court cautioned against "unwarranted expansion" of Fed.R.Crim.P. 52(b), and stated that even claims of serious error did not fall outside the scope of that rule. The Johnson court reasoned that expanding Rule 52(b) " `would skew the Rule's "careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed." ' " Id., quoting United States v. Young (1985), 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 12-13, in turn quoting United States v. Frady (1982), 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816, 827. The Johnson court further found that it had no authority to create a "structural error exception" to the rule, and seemed to hold that, in direct appeals from federal convictions, a structural error analysis is inappropriate in a plain-error situation. 520 U.S. at 466, 117 S.Ct. at 1548, 137 L.Ed.2d at 727.
Nevertheless, assuming that a structural-error analysis may possibly apply in an egregious plain-error situation, we find that in the circumstances of this case, the seating of an anonymous jury was not structural error. The use of an anonymous jury does not necessarily involve the violation of a fundamental right. There is no unqualified constitutional right to know the identity of jurors. In the instant case, the seating of an anonymous jury did not necessarily render the trial so fundamentally unfair that it could not be a reliable vehicle for the determination of appellee's guilt or innocence. See Rose, 478 U.S. at 577-578, 106 S.Ct. at 3106, 92 L.Ed.2d at 470. We find that this case does not present an example of a violation of a fundamental constitutional right that would lead to the basic unfairness that was present in cases such as Gideon, Tumey, Vasquez, McKaskle, Waller, or Sulliv
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