dissenting:
The United States Constitution guarantees criminal defendants the right to “a fair trial in a fair tribunal” and a jury verdict “based upon the evidence developed at the trial.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (citations omitted). “This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.” Id. In the matter before us, neither the trial nor the tribunal was fair because a juror made an unauthorized and unsupervised visit to the scene of the crime which, though discussed with other jurors, *1144remained undisclosed to the parties and the court until after the guilty verdict had been returned. The majority decision upholding the conviction despite this fundamental flaw, therefore, strikes a blow to the foundations of American criminal jurisprudence and sacrifices the integrity of the means our nation has chosen for what the majority views to be the proper ends in this specific case. Even a wrong that appears slight becomes significant when it has the power to lessen public confidence in our guarantee that a jury trial will be a fair trial, and thus cannot be ignored.
I.
Here, Timothy Sherman’s trial was not fairly conducted. At the start of it, jurors received a handbook to assist them in understanding their duties which cautioned them about discussing evidence among themselves and considering information from outside the courtroom. The handbook stated that “a juror should never, while a trial is in progress, inspect the scene of an accident or other event involved in the case.”1 Handbook at 33. The defense asked that the jury be allowed to visit the crime scene, but the trial judge refused.2 During the presentation of evidence, two central issues arose: whether the defendant — 6'2" tall and weighing but 130 pounds — possessed the physical capability to lodge the shotgun deep into the branches of a thick pine tree as it was found; and whether the defendant could have hidden the gun in the tree without generating some outward signal of his efforts, such as a scratch from a branch or tree sap and pine needles on his person.
One juror, confused by the seemingly conflicting testimony on these issues and the unrevealing photographs of the tree, took it upon himself to see, ie., to witness, “the tree that was so much in question.”3 In disregard of the handbook and without the knowledge of the parties, their counsel or even the judge supervising the trial, the juror and his wife drove one evening after court ended for the day to the subdivision where the crime had occurred.
Because of the sparse inquiry into the matter at a post-trial hearing, we do not have all of the facts concerning the juror’s investigation.4 We do know that he located the Sherman house and then drove through the neighborhood “looking for a tree that was so involved in the case.” We also know that he found the tree. We do not know, though, whether the juror touched the tree in an attempt to determine if there was exposed sap or loose needles, or even conducted his own experiment by trying to force something down among the branches. Nor do we know whether he tried to gauge the distance between the two houses and the tree.
The wayward juror told others on the panel of his outing.5 The trial judge and the *1145parties learned of the impropriety only after the jury had rendered its verdict, when it was too late to take corrective action. Before deliberations began, therefore, the judge had no reason to remind the jurors to disregard outside viewing of a scene nor to direct them specifically to ignore any information gathered during the juror’s visit to Sherman’s neighborhood. See Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir.1993) (finding unfair prejudice where information that the defendant was a convicted criminal was conveyed to jurors outside the courtroom without the attorneys and the judge knowing or having an opportunity to correct), cert. denied, — U.S. -, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994). We do not know what role the juror’s independent investigation played in his own mind or in deliberations because we cannot inquire into such matters. See Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892) (holding inadmissible juror testimony regarding the motives and influences which affected the jury’s deliberations). Nor do we have juror testimony regarding the presence or absence of prejudice resulting from the visit.6 See United States v. Seeright, 978 F.2d 842, 850 (4th Cir.1992) (finding that a juror’s personal investigation and sharing of result with rest of panel did not warrant a mistrial because the trial judge dismissed the offending juror and questioned each of the other jurors individually and specifically until he was satisfied that they were neither tainted nor prejudiced).7
*1146II.
The juror’s unauthorized and unsupervised visit clearly amounted to constitutional error as a violation of Sherman’s Sixth and Fourteenth Amendment rights. The majority treats the error as a trial defect and holds it to be harmless. If harmlessness were the proper inquiry, I do not agree with the majority’s finding. In my opinion, the personal viewing of the tree was harmful because it allowed the injection of evidence without the defendant having an opportunity to object, confront or cross-examine.8 Actual, secret, physical inspection of the tree can in no way be construed as “cumulative” of the evidence presented at trial, which consisted of photographs, videotape and testimony. The juror presumably would not have made his outing if that evidence were sufficient for him to resolve the issues in dispute. Even the district court, accepting that there was error in the juror’s actions but finding it harmless, acknowledged that the prosecution’s most crucial photograph, a close-up of the tree, “does not show me anything on its face.” It is therefore impossible to believe that the juror’s investigation did not impress him and possibly others and impossible to say — as one must in finding harmlessness — that the error did not have “substantial and injurious effect or influence in determining the jury’s verdict.”9 See Brecht v. Abrahamson, 507 *1147U.S. 619, 637, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d 353 (1993).
In any event, I believe that harmlessness review is not appropriate here because the error is fundamental and structural. The basic framework of our trial system requires that evidence be presented and tested in a public courtroom before the jury, the judge and the defendant. Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 549-50,13 L.Ed.2d 424 (1965) (stating that “[t]he requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury” and that the Constitution requires “at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel”); see also Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) (“There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due pro*1148cess of law.”) Independent and unauthorized jury viewing therefore is prohibited.
The Ninth Circuit Court of Appeals reaffirmed these fundamental principles in a recent opinion. United States v. Noushfar, 78 F.3d 1442 (9th Cir.1996). Reversing and remanding for a new trial, the court held that allowing the jury to listen to matters that had never been presented in open court requires reversal because the jury’s consideration of evidence is “a stage of the trial at which the presence of the defendant is required.” Id. at 1444. The court went on to say:
The court completely abdicated control of the presentation of the evidence.... In cases where the error is so fundamental and defies meaningful review, we have said that harmless or plain error analysis may not be applied. Instead, we find the error to be a structural error requiring automatic reversal.... [In an earlier ease,] we said that structural error analysis was the correct approach where there was a “complete abdication of judicial control over the process.”
Id. at 1445.10
A mistake that violates basic trial structure and taints the entire process is most properly labelled “structural error.” See Brecht, 507 U.S. at 629-30, 113 S.Ct. at 1717 (discussing difference between structural and trial error);11 Arizona v. Fulminante, 499 U.S. 279, 306-10, 111 S.Ct. 1246, 1262-65, 113 L.Ed.2d 302 (1991) (same). The impact of a juror’s personal gathering of evidence outside the courtroom by way of an unsupervised — indeed forbidden — viewing is difficult to isolate and assess. See Fulminante, 499 U.S. at 307-09, 111 S.Ct. at 1263-65 (explaining that trial error may be “quantitatively assessed ... in order to determine whether its admission was harmless” while structural error defies such analysis);12 see also Brecht, 507 U.S. at 629, 113 S.Ct. at 1717 *1149(same). Its pervasive nature cannot be discounted in an attempt to consider whether it was harmless.
Even if the information gleaned could be called harmless because it did not substantially influence the jury’s verdict, the independent investigation undermined the integrity of the trial and thus the jury’s decision.13 The harmful and truly the structural nature of the juror’s unauthorized and undisclosed visit to the tree becomes clear with the realization that Sherman was, as a consequence, deprived of his right to cross-examine the undisclosed witness.14 Contained in the Sixth Amendment’s guarantee that a defendant will be informed of the nature of the accusation and confronted with the witnesses against him, cross-examination is both a fundamental right and perhaps the most critical tool to be employed in the representation of a criminal defendant. Pointer, 380 U.S. at 404-05, 85 S.Ct. at 1068-69. Allowing a juror to conduct his own investigation outside the courtroom in an attempt to answer questions that arose in the criminal matter before him certainly “affects the framework within which the trial proceeds” and justifies automatic reversal of the conviction. Fulmi-nante, 499 U.S. at 309-10, 111 S.Ct. at 1264-65. I therefore do not believe that we can say that Sherman’s trial “reliably serve[d] its function as a vehicle for determination of guilt or innocence, and that [the] criminal punishment may be regarded as fundamentally fair.” Id. at 310, 111 S.Ct. at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)). It is not fundamentally fair to the parties for a juror, in effect, to conduct privately his own trial.
A juror’s reliance upon extrinsic information, even if that information is accurate and useful, “would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained.”15 Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907). “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence.” Id. The majority here ignores that fundamental precept and suggests that, in *1150some eases, jurors may ignore a judge’s orders and seek whatever information they like about a case from whatever source they wish.16 It overlooks the structural character of the error, as well as the destructive effect on the public’s trust, to allow a jury trial to be conducted with such blatant violations of governing rules.
III.
Some errors are so egregious that they must be corrected, even if the result is to overturn a guilty verdict. “Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison.... For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy.” Fay v. Noia, 372 U.S. 391, 441, 83 S.Ct. 822, 850, 9 L.Ed.2d 837 (1963).
The result of granting habeas relief in this case would not necessarily be to let a convicted killer go free. The State of Maryland would have an opportunity to retry Sherman properly in an attempt to secure a conviction from an untainted jury. Here, “[pjublic confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.” Sherman v. United States, 356 U.S. 369, 380, 78 S.Ct. 819, 825, 2 L.Ed.2d 848 (1958) (Frankfurter, J., concurring). Sherman may well have killed his parents, but we are a less civilized nation if we do not require the State to prove in a fair trial that he did so. It is not enough merely that a defendant committed a crime. The fundamental tenets of our justice system require that he be convicted properly.
IV.
For the above reasons and those contained in the earlier majority opinion of the panel, Sherman v. Smith, 70 F.3d 1263 (4th Cir.1995) (unpublished) (per curiam), vacated and reh’g en banc granted (4th Cir. Jan. 18, 1996), I respectfully dissent. I would favor the grant of the writ of habeas corpus.
ERVIN and MICHAEL, Circuit Judges, join in this dissent.
. While nothing in the handbook "is to be regarded by jurors as instructions in law,” the pamphlet makes clear what constitutes proper evidence and that an unsupervised or unpermit-ted inspection of the scene of the crime is wrong.
. The State has asserted that the jury knew about neither the request nor the denial. Those circumstances do not change the fact that a site visit was precluded both before the request and after the denial.
. Photographs of the tree and the neighborhood had been introduced at that point in the trial, but the juror wanted a clearer view.
. Federal and state evidentiary rules forbid inquiry into how outside influences might have affected the jury's deliberations and verdict, but permit questioning about whether extraneous prejudicial information was improperly brought to the attention of any juror. Fed.R.Evid. 606(b); Md. R. Evid. 5 — 606(b). Thus the parties could have asked for the details of the juror's visit. The trial judge prohibited the question of why the juror went to the site, but the juror explained his actions anyway, testifying at the post-trial hearing that "the reason why I went there was so I could see the tree that was so much in question.”
.Sherman has submitted the affidavit of an alternate juror, indicating that the juror told the others about his investigation and shared what he learned. Because that affidavit was not presented before a state court, however, there is some question as to whether it may properly be considered on federal habeas review. See Boggs v. Bair, 892 F.2d 1193, 1199 n. 2 (4th Cir.1989) (prohibiting the introduction of an affidavit for the first time on federal habeas review after determining that it could have been presented at state court proceedings), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 521 (1990). We previously ruled in the present matter that the state court's determination that the unautho*1145rized site visit did not warrant a new trial was not a finding of fact entitled to deference under 28 U.S.C. § 2254(d), but subject to de novo review in a federal habeas proceeding. Sherman v. Smith, 8 F.3d 820 (table), 1993 WL 433317, at *4 (4th Cir. Oct.27, 1993) (unpublished) (No. 92-6947); see also Lawson v. Borg, 60 F.3d 608, 612 (9th Cir.1995) (stating that the harmlessness of a constitutional error is not a factual determination entitled to § 2254(d)’s presumption of correctness). It therefore would seem proper for the federal habeas court to consider the affidavit, as the district court here did, especially considering the time when the subject arose.
. There was no questioning of individual jurors regarding the possibility of taint or prejudice here, nor was there warning by the judge for the jurors to avoid it.
. Like the instant case, Crockett v. Commonwealth, 187 Va. 687, 47 S.E.2d 377 (1948), concerned a prosecution for murder and an unauthorized, though innocent, jury view of the crime scene. There, though, the question of the burden of proof to show prejudice or lack thereof was at issue. Id. 47 S.E.2d at 386. The Virginia Supreme Court of Appeals reversed the conviction and ordered a new trial. Id. at 387. Not deciding whether the Virginia rule requiring the defendant's presence on a jury view came into play in the matter before it, the court said a new trial was necessary to protect "the fundamental rights of an accused.” Id. at 385. The court concluded:
We cannot say that impressions the jury could have so obtained may not have been harmful to the accused. Though no wrongful action was intended ... the happening casts a shadow of such magnitude over that part of the proceedings as to constitute such misconduct on their part as to impose upon the Commonwealth the burden of disproving any harmful result to the accused. That such proof, under the circumstances here presented, is difficult if not well-nigh impossible, does not render less imperative the necessity of its production.
Id. at 386.
Roberts v. United States, 60 F.2d 871 (4th Cir.1932), also concerned an unauthorized visit by jurors to the scene of the crime involved in the case. There, however, the court found that the mere fact that an unauthorized view took place caused no prejudice to the defendant, but said nothing about on whom the burden of proving prejudice fell. Id. at 873. Relying on Roberts, the court in People v. Kraus, 147 Misc. 906, 265 N.Y.S. 294 (Ct.Gen.Sess.1933), found no prejudice shown to have resulted from an independent site visit by a juror who was unaware that his actions were improper. Id. 265 N.Y.S. at 297-300. The trial court admitted that it had failed to order the jurors not to visit the scene of the crime. Id. at 296. Another case invoking Roberts, Orenberg v. Thecker, 143 F.2d 375 (D.C.Cir.1944), found that an unauthorized visit to the scene brought no extraneous influences to bear upon the jurors and therefore affirmed the trial court's denial of a new trial. Id. at 376. United States v. Kansas City, Mo., 157 F.2d 459 (8th Cir.1946), also relied on Roberts in holding that the verdict was not affected by an unauthorized viewing by some of the jurors of the property at issue in the case. Id. at 462-63. The court there also made much of the fact that, if a request for permission to view had been requested, it "would doubtless have been granted.” Id. at 462.
Neither Roberts nor its progeny expressed any belief or concern that unauthorized viewing was unconstitutional. While they therefore did not address the question of whether the error was “structural” or "trial,” that omission is understandable because they antedated the United States Supreme Court's decision that constitutional errors could be harmless in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d *1146705 (1967). Most significantly, however, these cases did not even allude to the vital rights of confrontation and cross-examination of which the parties were deprived. Nor did they concern situations where a visit to the scene was not only unauthorized but specifically forbidden.
In considering the matter before us, we cannot overlook the fact that evidentiary rules precluded the parties from questioning the jurors — including the maker of the forbidden site visit — as to what effect the unauthorized viewing had on them and that the juror's actions directly violated both the handbook and the trial judge's denial of a jury visit to the scene. Despite the results in Roberts, the error in Sherman's case very clearly involves both the flawed structural character of the jury trial he was given and exhibits a behavior infraction that amounted to a fundamental invasion of the defendant's rights.
. Unauthorized juror viewing of the scene at issue in an ongoing trial is not generally acceptable conduct. Ruling in an 1888 case deemed "without precedent” and “of the greatest importance," Scottish judges found that a juror's un-permitted and unsupervised visit to the site of an injury led to "a gross miscarriage of justice.” Sutherland v. Prestongrange Coal & Firebrick Co., 15 R. (Ct. of Sess.) 494, 495 (Scot.1888). In setting aside the jury verdict, the judges viewed it as largely irrelevant whether the juror had influenced his fellow panel members. The Lord President explained:
The jury are empaneled and sworn to return a verdict according to the evidence led before them. They are not entitled to proceed upon anything else but the evidence given upon oath, and if they do proceed upon anything else they cannot return a verdict according to their oath.... I think therefore it is essential to the justice of the case that we should grant a new trial.
Id. at 495-96. A second judge expressed his opinion as follows:
It is impossible to feel satisfied that the verdict in this case was returned according to the evidence laid before the jury. It is impossible to believe that this gentleman ... was not impressed by what he saw. He therefore gave his verdict upon evidence not obtained at the trial. Whether, or how far, he influenced others by stating the impression made upon himself it is impossible to state, but it is very probable that he did to some extent influence his co-jurors.
Id. at 496 (opinion of Lord Adam).
In Rex v. Ryan, 4 W.W.R. (N.S.) 32, 101 C.C.C. 101 (Brit.Col.1951), the court required a new trial after conviction because the jury in a murder case made an out-of-court excursion without the trial judge's permission. The Court of Appeal explained:
The jury is a legal institution in which the people take great pride. Through it the people take their responsible part in the administration of legal justice. Removal of the jury from all outside influences lies at the very foundation of the confidence that has been maintained in it. It is of the highest importance therefore not only that no communication with outsiders shall actually in fact occur, but also that nothing shall seem to take place which may weaken respect for the jury in the public mind.
101 C.C.C. at 105 (internal citation omitted).
. The majority appears to have forgotten the Supreme Court's exhortations not to focus on the guilt of the defendant but on the effect that the error had on the jury's verdict. “Harmless-error review looks ... to the basis on which the jury actually rested its verdict ... not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered.” Sullivan v. Louisiana, 508 U.S. 275, 278-79, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) (citations omitted); see also O’Neal v. McAninch,-U.S.-,-., 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995) (advising appellate judges, when "in grave doubt” about whether an error was harmless, to treat the error not as harmless, but as though it affected the verdict).
*1147See generally Harry T. Edwards, To Err is Human, But Not Always Harmless: When Should Legal Error be Tolerated?, 70 N.Y.U. L.Rev. 1167 (1995). Chief Judge Edwards asserts:
Indeed, Chief Justice Rehnquist says that, in any harmless-error review, the role of the appellate court is to "determine whether it is possible to say beyond a reasonable doubt that the error did not contribute to the jury's verdict.”
Only last term, the Supreme Court offered up its decision in O'Neal v. McAninch, [— U.S. -, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) ] the crown jewel in the decisions moving away from guilt-based applications of the harmless-error doctrine. In O’Neal, the Court considered what action a federal habeas court must take when, upon review of a state-court judgment from a criminal trial, it finds itself left in "grave doubt” as to whether a constitutional error was harmless. The court, in an opinion by Justice Breyer, held that the appellate judge in such a case should treat the error not as harmless, but rather as though it affected the verdict. This conclusion, the Court stated, is consistent with the application of the Kotteakos [v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)] standard, which applies even to constitutional errors in habeas proceedings, and which admonishes that " 'if [a reviewing court] is left in grave doubt [as to the harmlessness of an error], the conviction cannot stand.' ”
Id. at 1201-02 (emphasis in original; footnotes omitted). How can one properly regard as nonstructural, or harmless, an error where the defendant is kept altogether ignorant of a witness he should have been allowed to cross-examine about a matter which played such a central part in the case?
Chief Judge Edwards describes Justice Breyer's “common-sense view of harmless error focused not on artificial categories of cases, but on notions of fundamental fairness.” Id. at 1202. He notes that O'Neal establishes that “the proper measure of harmlessness is whether the error 'had substantial and injurious effect or influence in determining the jury's verdict,’ not whether the record evidence is sufficient absent the error to warrant a verdict of guilt.” Id. (Emphasis in original; citation omitted).
In note 160, Judge Edwards continues:
In Kyles v. Whitley, - U.S. -, -, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995), the Court ruled that, in determining whether the defendant has been prejudiced by a violation of Brady, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” ... According to the majority[of the Supreme Court] "[a] defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” ... Thus, this case seems to return to Kotteakos's original focus on the severity of the error rather than the cumulative weight of the untainted evidence.
Id. at 1203. The article describes the Supreme Court as making "it clear that ‘[a]n error may seriously affect the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 1204 (emphasis in original).
Judge Edwards concludes by saying that "[t]he mission of the appellate courts in evaluating claims of harmless error should be to address significant errors and ensure fundamental fairness.” Id. at 1209. The statement is reminiscent of the Supreme Court’s admonition that a prosecutor’s interest in a criminal case "is not that it shall win a case but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The interest of the trial judge is at least as great.
. The opinion of the majority in the instant case therefore seems to create a circuit split inviting the Supreme Court to grant certiorari. Perhaps then the majority opinion would be shown to have but a short life.
. It should not be overlooked that the Supreme Court in Brecht relied very much on the fact that state courts had earlier found the error harmless beyond a reasonable doubt in concluding that the federal court on habeas corpus review need not duplicate the analysis set forth in Chapman, 386 U.S. at 24, 87 S.Ct. at 828. Brecht, 507 U.S. at 635-38, 113 S.Ct. at 1720-22. Here, there was never a state court finding pursuant to Chapman, so requiring that inquiiy may not as easily be viewed duplicative and unnecessary.
. Again, there was no opportunity in Sherman’s case to determine whether the error could be cured and thus deemed harmless. Neither the trial judge nor Sherman knew of the site visit and resulting breach of Sherman's right of cross-examination until after the jury had rendered its verdict. Under different circumstances, the matter might well require a different outcome. The fact remains, however, that the error in Sherman's case remained unaddressed and uncured, and thus violated the entire structure of the trial.
Although it concerned somewhat different circumstances, State v. Magwood, 290 Md. 615, 432 A.2d 446 (1981), is instructive. There, the trial judge permitted a jury hearing a criminal case to separate overnight despite the fact that it was in the midst of deliberations. The defendant’s counsel agreed to the separation and the defendant did not object, and the judge gave the jury the ordinary admonition “not to discuss the case during their overnight separation or to consult outside references." Id. 432 A.2d at 447. In analyzing the claim of error, the Maryland Court of Appeals emphasized the judge's instruction not to discuss the case and “not to consult outside sources.” Id. at 451. Although it found no demonstration of “any violation of this court instruction," the court of appeals declared that if a breach of the prohibition had occurred, the remedy would have been "to attack1 the jury verdict as improperly reached.” Id. The court further found that counsel's acceptance of the jury separation waived the defendant's right to a sequestered jury, but noted that only the defendant could have waived his right to confront witnesses against him. Id. at 450. Here, of course, neither Sherman nor his counsel could waive his rights because they did not know of the unpermitted jury excursion. Furthermore, the forbidden juror activity actually occurred.
It is also helpful to consider State v. Collins, 265 Md. 70, 288 A.2d 163 (1972). There, notice of a deposition was sent to, but not actually received by, the defendant. His counsel nevertheless appeared and cross-examined the witness. Id. 288 A.2d at 168. The Maryland Court of Appeals reversed the conviction and remanded for a new trial, noting that it had made "assiduous efforts to protect the constitutional guarantee of confrontation at all stages of a trial” and that "these efforts would be meaningless if this inviolable right could be circumvented by allowing the deposition of a witness, taken while the accused is involuntarily absent, to be admitted in evidence at trial.” Id. at 170.
. In Sutherland, the Scottish court required a new trial although it could not be sure whether the improperly behaving juror influenced his fellow jurors or himself. 15 R. (Ct. of Sess.) at 495-96. The court essentially found that the jury's verdict was structurally deficient, ruling that it had not been returned "according to their oath.” Id. at 495.
. The outcome in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), illustrates an essential distinction. Upon review of a reversal of a conviction because of a restriction on the defendant's ability to cross-examine a witness which violated his Confrontation Clause rights, the Court remanded to allow harmlessness to be explored. Id. at 684, 106 S.Ct. at 1438. Unlike Sherman's situation, the defense in Van Arsdall was fully aware of the bias issues it sought to explore with cross-examination, but was denied the opportunity. Hence, remand to examine whether prejudice or harm had occurred was appropriate, for the error was a trial error. On remand, the Supreme Court of Delaware held that the error violated the Delaware Constitution and was not harmless. Van Arsdall v. State, 524 A.2d 3, 6 (Del.1987).
Sherman, though he would be aware of how vital cross-examination of the errant juror would be if he testified, was totally ignorant that the juror had in essence become a witness subject to cross-examination. Thus, harmlessness could not possibly be found. Under the circumstances of Van Arsdall, knowledge of the witness's presence and the possibility of exploration by cross-examination perhaps allowed the error to be treated as a "trial” error. In Sherman's case, however, the error was clearly "structural” from the moment it occurred. Sherman, altogether unaware that he was being denied the right of confrontation, cannot be faulted for not attempting to cross-examine. The artificial category of cases labelled “Confrontation Clause” cases and deemed amenable to harmless-error review should not be permitted to eradicate “notions of fundamental fairness.”
.Again, the principle is fundamental to Anglo justice systems. In ordering a new trial after jurors had improperly asked questions of a boatman taking them on an authorized view, an Australian court stated:
It is quite clear that a jury, sworn to find their verdict according to the evidence, cannot have any evidence before them except such as is adduced in open Court, and if such evidence, whether it be oral or in writing, come to them the verdict may be avoided.... Nor is the case altered by the fact that the evidence so given out of Court may be true.
Smith v. Neild, 10 N.S.W.L.R. 171, 173 (Aus.1889) (citations omitted).
. There is no indication that the misbehaving juror here was sanctioned, or otherwise rebuked . or punished, once the error he committed became known. The lack of such a response suggests that any juror may so violate a court’s directions with impunity. The majority underscores the message by allowing the error to stand uncorrected. Its decision controls not only in Harford County, Maryland, but in every city and county in the five states comprising the Fourth Circuit. Hereafter jurors will feel free to disregard instructions not to perform unsupervised viewing of the scene of the crime.
. Deprivations of each of these rights has been held to be structural error. See Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (reasonable doubt instruction); Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 2217 n. 9, 81 L.Ed.2d 31 (1984) (public trial); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (counsel at trial); Turney v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (impartial judge).