Id. ; State v. Rende , 2018 ND 56, ¶ 8, 907 N.W.2d 361. "We apply a de novo standard of review to a claim of a constitutional violation." State v. Decker , 2018 ND 43, ¶ 6, 907 N.W.2d 378 (quoting State v. Aguero , 2010 ND 210, ¶ 16, 791 N.W.2d 1 ). [¶ 4] A structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself."
We have said that structural errors are constitutional errors "so intrinsically harmful as to require automatic reversal" regardless of whether they were forfeited or waived. Id. at ¶ 3 (reversing and remanding for new pretrial competency hearing); State v. Pittenger , 2019 ND 22, ¶ 8, 921 N.W.2d 439 ; State v. Decker , 2018 ND 43, ¶ 8, 907 N.W.2d 378 ; State v. Watkins , 2017 ND 165, ¶ 12, 898 N.W.2d 442 ; State v. White Bird , 2015 ND 41, ¶ 24, 858 N.W.2d 642. A
This Court has repeatedly said structural errors require automatic reversal regardless of whether they were forfeited or waived, including when the error is invited. Morales , at ¶ 15 ; Rogers , at ¶ 3 ; State v. Rende , 2018 ND 56, ¶ 8, 907 N.W.2d 361 ; State v. Decker , 2018 ND 43, ¶ 8, 907 N.W.2d 378 ; Watkins , 2017 ND 165, ¶ 12, 898 N.W.2d 442 ; seeState v. White Bird , 2015 ND 41, ¶ 24, 858 N.W.2d 642. These cases did not squarely present the question of whether or under what conditions a structural error may be waived.
¶21 Although we did not opine on the propriety of the triviality standard in Hassen , we note that it has gained acceptance since the Second Circuit first adopted it over two decades ago. See, e.g. , Perry , 479 F.3d at 890–91 (exclusion of defendant’s eight-year-old son from entire trial was trivial); United States v. Ivester , 316 F.3d 955, 960 (9th Cir. 2003) (exclusion of "spectators during the brief mid-trial questioning of the jurors" was trivial); Braun , 227 F.3d at 919 (exclusion of member of jury venire not selected to serve as a juror from entire trial was trivial); People v. Bui , 183 Cal.App.4th 675, 107 Cal. Rptr. 3d 585, 593, 595 (2010) (exclusion of three individuals during voir dire for roughly forty minutes was trivial); Northcutt , 358 P.3d at 185 (presiding judge making an inquiry to a deliberating jury without counsel or defendant present to ask whether it would render a verdict that day was trivial); State v. Decker , 907 N.W.2d 378, 385 (N.D. 2018) (exclusion of lawyer unconnected with the case during voir dire was trivial). But see United States v. Agosto-Vega , 617 F.3d 541, 544–54, 548 (1st Cir. 2010) (declining to adopt the triviality standard where the trial court excluded a defendant’s family members during jury selection); Smith v. Smith , No. 17-673 (JRT/TNL), 2018 WL 3696601, at *8 (D. Minn. Aug. 3, 2018) (questioning "whether the triviality exception conforms with the Sixth Amendment").
State v. Decker, 2018 ND 43, ¶ 9, 907 N.W.2d 378. See also Martinez, at ¶ 33 ("the Sixth Amendment public trial right extends to jury selection").
[¶10] Pulkrabek correctly points out that structural errors are intrinsically harmful and render a trial fundamentally unfair. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246 (1991); see also State v. Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378. However, he cites no case supporting the proposition he could not waive his rights under the Detainers Act without counsel, or even if he could not, that such a violation constituted a structural error.
This Court has repeatedly said structural errors require automatic reversal regardless of whether they were forfeited or waived, including when the error is invited. Morales, at ¶ 15; Rogers, at ¶ 3; State v. Rende, 2018 ND 56, ¶ 8, 907 N.W.2d 361; State v. Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378; Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d 442; see State v. White Bird, 2015 ND 41, ¶ 24, 858 N.W.2d 642.
Morales , 2019 ND 206, ¶ 15, 932 N.W.2d 106. Structural errors are constitutional errors "so intrinsically harmful as to require automatic reversal." See, e.g.,Morales , at ¶ 15 ; State v. Rogers , 2018 ND 244, ¶ 3, 919 N.W.2d 193 ; State v. Rende , 2018 ND 56, ¶ 8, 907 N.W.2d 361 ; State v. Decker , 2018 ND 43, ¶ 8, 907 N.W.2d 378 ; State v. White Bird , 2015 ND 41, ¶ 24, 858 N.W.2d 642. [¶8] The threshold question in determining whether a defendant's public trial right was implicated is whether the proceeding was closed.
The deprivation of the right to counsel is a structural error. State v. Decker , 2018 ND 43, ¶ 8, 907 N.W.2d 378. We review an alleged denial of a defendant's right to counsel de novo.
[¶4] Denial of the right to a public trial without proper analysis is a structural error requiring automatic reversal. See State v. Rogers , 2018 ND 244, ¶¶ 3, 6, 919 N.W.2d 193 ; State v. Decker , 2018 ND 43, ¶ 8, 907 N.W.2d 378. Four constitutionally mandated factors must be considered before closing a courtroom to the public:"1.