¶43
(concurring in part, dissenting in part) — I concur with the majority opinion when it holds “the plain language of the statute and the structure of the sexually violent predator act[10] gave Kistenmacher a statu*185tory right to counsel at his precommitment psychological examination.” Majority at 173. However, I cannot agree the violation of Alfred Kistenmacher’s right to counsel at his psychological examination constitutes harmless error. As such, I would reverse and remand for a new trial.
Sanders, J.*185¶44 Depriving Kistenmacher of his right to counsel at his psychological examination is an error requiring a remedy. The lack of counsel at a psychological examination is structural and requires reversal. Even if the error were not structural, it was not harmless because Dr. Goldberg testified about the contents of the examination. This testimony used the exam to establish credibility for the diagnosis as well as to establish other facts and admissions. Since this testimony was significant, the error was not harmless.
¶45 The psychological exam is central to a sexually violent predator (SVP) trial and results in indisputably important evidence. Structural errors are those which create “ ‘defect [s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). “Structural errors . . . are not subject to harmless error review.” State v. Frost, 160 Wn.2d 765, 779, 161 P.3d 361 (2007) (citing Fulminante, 499 U.S. at 310). Instead structural errors are “subject to automatic reversal.” Neder, 527 U.S. at 8. In the criminal context, deprivation of “the presence of counsel ‘at a critical stage’ ”11 constitutes structural error requiring reversal. Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)). Although the SVP commitment proceeding is supposedly “civil,” the deprivation of counsel at important junctures affects the frame*186work of the trial where indefinite, perhaps lifelong, imprisonment is at issue.
¶46 The psychological examination is central to the SVP trial. As the majority points out, the psychological examination is one of only three major events in SVP commitment proceedings. Majority at 173. The exam is necessary to prove the defendant “suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility,” an element to be proved for SVP commitment. RCW 71.09.020(16). The length of Dr. Goldberg’s testimony, exceeded only by the defendant’s videotaped deposition, shows the centrality of the psychological exam to the trial.
¶47 The examination also provides evidence vitally important to the trial’s outcome. The psychological testimony may be determinative as jurors often give expert opinions disproportionate weight. “ ‘Once defendants are turned over to medical or psychiatric clinics for an analysis of their physical well-being and the condition of their psyche, the effective trial will be held there and not before the jury.’ ” In re Det. of Williams, 147 Wn.2d 476, 497, 55 P.3d 597 (2002) (Chambers, J., concurring) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 125, 85 S. Ct. 234, 13 L. Ed. 2d 152 (1964) (Douglas, J., dissenting in part)). This is because a psychiatrist’s “ ‘report may either overawe or confuse the jury and prevent a fair trial.’ ” Id. (quoting Schlagenhauf, 379 U.S. at 125).
¶48 Even if the error was not structural, the deprivation of Kistenmacher’s right to counsel could not be harmless. An error is harmless only if it is an “error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.” State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947). However, “it is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors.” State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946). Even so, *187the majority attempts to deduce which evidence the jury found important, making “a tacit admission that an appellate court is necessarily engaging in fact-finding and thereby invading the province of the jury.” Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277, 279 (1995).
¶49 Nor was the deprivation of Kistenmacher’s right to counsel trivial. According to Dr. Goldberg the mere presence of a third party, like an attorney, can “interfere with the forensic evaluation process.” 3 Verbatim Report of Proceedings (RP) at 12. However, the lawyer’s role is sometimes to do exactly that, “interfere.” At the very least the lawyer would have firsthand knowledge of how the exam was conducted so as to more effectively cross examine the State’s star witness.
¶50 The majority argues the testimony based on the evaluation was harmless because the information gathered by Dr. Goldberg during the psychological examination was duplicative of information available from records or from Kistenmacher’s videotaped deposition. Majority at 175. However, Kistenmacher’s deposition was taken eight months after the exam. The information “revealed” at the deposition had been first revealed in the tainted exam and continued to carry the taint of that revelation. Moreover, Dr. Goldberg testified to several statements made by Kistenmacher during the course of the improper exam. These included verification of reported but nonadjudicated molestation incidents,12 acknowledgment of sexual fantasies about children,13 and additional information about his criminal convictions.14 In an effort to bolster the credibility of his opinion and diagnosis, Dr. Goldberg testified the examination provides value in forming a diagnosis.15 Between the additional information received and the addi*188tional credibility supplied by the examination, the examination was valuable to the State and, correspondingly, prejudicial to the defense. It went far beyond merely duplicating information gleaned from other reports.
¶51 I would hold the denial of Kistenmacher’s right to counsel at his psychological examination was structural error. As a structural error it is not subject to harmless error review but instead requires automatic reversal. However, even if the deprivation of counsel at the psychological exam were subject to harmless error analysis, the error was not trivial or merely academic. Under either analysis Kistenmacher’s commitment must be reversed and remanded for a new trial.
f 52 I therefore concur in part and dissent in part.
Alexander, C.J., concurs with Sanders, J.
10 Ch. 71.09 RCW.
Critical stages are those “stepfs] of a criminal proceeding, such as arraignment, that held significant consequences for the accused.” Bell, 535 U.S. at 696. A psychological examination has significant consequences in an SVP hearing because the exam is central and vital to the outcome of the trial.
3 RP at 26-34.
3 RP at 53.
3 RP at 36.
3 RP at 42.