(concurring in part and dissenting in part). I agree with the lead opinion that a new trial is warranted. I write separately because I disagree that the error here is based solely on any failure to comply with MCR 6.414(F).1 Rather, I conclude that a new *596trial is necessary on the basis of the trial court’s mistake in giving the original instruction despite the fact that defense counsel relied on the modified version in his closing argument, which in turn compromised defense counsel’s ability to effectively represent defendant.2 As a consequence of the trial court’s mistake, the court effectively denied defense counsel the ability to correctly argue the applicable law to the jury.3 I also believe the ramifications of such an error are constitutional in nature.
i
I agree with the lead opinion in finding persuasive People v Patskan, 387 Mich 701; 199 NW2d 458 (1972). My persuasion, however, is based on the fact *597that the Patskan Court stated that the error before it was “fundamentally unfair” and an infringement on the “defendant’s right to due process of law.” Id. at 710.4 Additionally, the United States Supreme Court in United States v Cronic, 466 US 648, 659, n 25; 104 S Ct 2039; 80 L Ed 2d 657 (1984), citing, inter alia, Herring v New York, 422 US 853; 95 S Ct 2550; 45 L Ed 2d 593 (1975), noted that it
has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.
In Herring, supra at 860, 862-863, the Supreme Court concluded:
“The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor . . .
[N]o aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.
*598* * *
[T]he difference in any case between total denial of final argument and a concise but persuasive summation could spell the difference, for the defendant, between liberty and unjust imprisonment.
Accordingly, because the United States Supreme Court has held that the closing argument “ ‘necessarily includes [the defendant’s] right to have his counsel make a proper argument on [all the admissible] evidence’ ”5 that had been presented before the jury, I conclude that the error here is constitutional in dimension.6
*599II
In order to find constitutional error under circumstances like those in the instant case, a showing of prejudice is required before reversal is warranted.7 I believe the proper analytical framework for prejudice analysis is found in People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994). *600There, we outlined the inquiry the United States Supreme Court held must be made by a reviewing court regarding “[a]n error that violates the federal constitution . . . Id. at 404, citing Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967), and Arizona v Fulminante, 499 US 279; 111 S Ct 1246; 113 L Ed 2d 302 (1991).8 In Anderson, supra at 405, we noted that the Court in Fulminante, supra at 309, stated that the renewing court:
First . . . must ask if the error is a “structural defect[ ] in the constitution of the trial mechanism, which def[ies] analysis by ‘harmless-error’ standards.”[9]
When a structural defect is found, “a court must automatically reverse.” Anderson, supra at 405. However, not all errors demand reversal per se. Instead, other errors
“occur[ ] during the presentation of the case to the jury, [ ] which may [ ] be quantitatively assessed in the context of other evidence presented in order to determine whether its *601admission was harmless beyond a reasonable doubt.” [Id. at 405-406, quoting Fulminante, supra at 307-308.] [10]
These errors require the reviewing court
to determine, beyond a reasonable doubt that there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” [Id. at 406, quoting Chapman, supra at 23.]
The lead opinion refers to the first inquiry set forth by the Court in Fulminante, supra at 309.11 However, the lead opinion inadvertently mentions only the first part of the “two-part inquiry,” i.e., the reviewing court must ask if the error defies a harmless error standard because it constitutes a total deprivation “of due process.”12 I agree that the error in this case does not warrant automatic reversal because it does not equate to a “total deprivation of due process.”13 I conclude that the issue here is whether defendant was denied her right to representation under the Sixth Amendment of the United States Constitution as a consequence of the trial court’s decision not to provide the modified instruction to the jury, i.e., whether we may *602conclude beyond a reasonable doubt that there is no possibility that the trial court’s failure to provide the modified instruction contributed to defendant’s conviction.
Accordingly, part two of the “two-part inquiry” from Fulminante, supra at 309, should be applied to the error in this case. In determining whether a new trial is demanded, the people are required to prove beyond a reasonable doubt that there is no “ ‘reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Anderson, supra at 406, n 36, quoting Chapman, supra at 24.14
III
The people argue that defendant was not prejudiced because, even if the trial court had instructed the jury on the modified instruction, the jury’s focus still would have been on whether a reasonable person in defendant’s position could have avoided the injury to Rodney by using ordinary care.15
Regardless of the people’s contention, I conclude that the Court of Appeals reversal of defendant’s conviction should be affirmed if defense counsel’s closing argument was prejudicially affected as a result of the trial court’s acknowledgment of defense counsel’s *603proposed modification. See Kotteakos v United States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946), Chapman and Anderson, supra. Hence, the trial court’s failure to provide the modified instruction must be comparatively assessed in light of the record as a whole and a determination must be made with regard to whether it can be said beyond a reasonable doubt that the error was harmless. Anderson, supra at 406, citing Fulminante, supra at 307-308.16
In this instance, after the people consented to17 and the trial court accepted the modified portion of the instructions, defense counsel argued throughout his closing argument that defendant, to be found guilty, would had to have known that Rodney’s death would result as a consequence of her conduct.18 Defense *604counsel’s reliance on the modified instruction is clearly evidenced throughout his closing argument by the following sampling from the trial transcript, i.e., that defendant did not realize her failure to hydrate Rodney would cause his death:
It is what [defendant] did to Rodney and whether under the circumstances it was apparent to her what she did caused his death.
* * *
[Defendant] got no support or no clue that what she was doing■ — that is, denying him when he wanted more water' — ■ that that was wrong or that would lead to death.
* * *
[T]here was no suggestion that if [defendant] reduce [d] the intake [of water], you are going to cause any — you are going to cause death, and that’s what you have got to look to.
* * *
[Y]ou will not find from the evidence that there was anything apparent to [defendant], which would lead a reasonable person to conclude that by denying his excessive demand, [Rodney] would die.
* * *
You have got to conclude that it was apparent to [defendant] as she was caring for her child that her conduct would lead — 'if she continued, would lead to his death. [Emphasis added.]
*605The effectiveness of defense counsel’s argument and the totality of the defense was impaired by counsel’s reliance on inaccurate information regarding the jury instructions. As such, it cannot be concluded beyond a reasonable doubt that the trial court’s failure to provide the instruction had no effect on the jury’s verdict.
The people argue that the jury’s verdict would not have been affected had defense counsel based his closing argument on the accurate instruction.19 Nevertheless, I am persuaded that it cannot be concluded beyond a reasonable doubt that if defense counsel's argument had been retailored to focus more vigorously on defendant’s conduct and not on Rodney’s resulting death, there would not have been a different verdict.20 Having reviewed the record as a whole, it is apparent that defense counsel relied on “causing death” as essential to the fourth element of gross negligence.21 Therefore, it seems reasonable to conclude that most of defense counsel’s closing argument was repudiated by the trial court’s instructions. Had the trial court instructed the jury pursuant to the modified instruction, I believe “it is completely impossible ... to say that . . . the [people] ha[ve] demonstrated, beyond a reasonable doubt,” that the trial court’s failure to provide the modified instruction to *606the jury “did not contribute to [defendant’s] conviction[ ].” Chapman, supra at 26.
Therefore, I conclude that the jury, in asking for a clarification of the definition of gross negligence, evidenced its confusion regarding the difference between the two arguments and the final instruction. Consequently, I am unable to declare a firm belief that the trial court’s error in providing the jury with the original instruction, despite the fact that defense counsel relied on the modified version in his closing argument, was harmless beyond a reasonable doubt.
The lead opinion treats the error as a technical violation of MCR 6.414 The United States Supreme Court, as well as this Court, had long ago attempted to avoid reversal on the basis of mere technicalities. In Kotteakos v United States, 328 US 750, 760; 66 S Ct 1239; 90 L Ed 1557 (1946), the Supreme Court observed that the effort to revise the Federal Rules of Criminal Procedure had, as its ultimate goal,
"not [to] be technical, where technicality does not really hurt the party whose rights in the trial and in its outcome the technicality affects. . . . [Rather,] the party seeking a new trial [has] the burden of showing that any technical errors that he may complain of have affected his substantial rights, otherwise they are to be disregarded.”
Thus, if this is merely a technical violation of a court rule, then we should be reviewing the record to determine the amount of credible evidence establishing defendant’s guilt. People v Mateo, 453 Mich 203, 207, 215; 551 NW2d 891 (1996) (“[R]eversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence”), citing, inter alia, People v Peterson, 450 Mich 349, 377-378; 537 NW2d 857 (1995); People v Straight, 430 Mich 418, 427; 424 NW2d 257 (1988); People v Young (After Remand), 425 Mich 470, 505; 391 NW2d 270 (1986).
The lead opinion frames the error here as “instructional error.” Ante, p 587. However, I find this to be an inaccurate description because the trial court, upon realizing that the amended instructions were legally wrong, ruled that it could not provide these instructions because the prosecutor’s burden under them would be inappropriately heightened. Hence, the error here does not involve “instructional error”; rather, it centers on the prejudicial effect on the defense as a result of the trial court’s granting defense counsel’s motion to amend immediately before his closing argument and then giving the original version of the instructions to the jury.
If the trial court had given the modified instructions as agreed by the people to the jury, the people would have had a higher burden to satisfy, i.e., causing death versus serious ipjury. Yet, with this higher burden, had the jury found defendant guilty of manslaughter, reversal would not have been required because all the elements of the crime as charged would be satisfied beyond a reasonable doubt.
I note that this conclusion conflicts with the concurring opinion in People v Patskan, 387 Mich 701, 716; 199 NW2d 458 (1972) (T. G. Kavanagh, J., joined by Williams, J.). The concurrence was concerned that “had the instruction been given, and defendant been convicted thereunder, we would have no choice but to reverse the conviction.” However, the instruction relied on by defense counsel in Patskan, was arguably unwarranted because no such crime existed. While, here, the crime of manslaughter is a culpable offense and, thus, had the jury found the essential elements necessary for a conviction, this Court would not reverse, i.e., we would not reverse because the people would have sustained a higher threshold.
See People v Swejkowski, 90 Mich App 366, 371; 282 NW2d 5 (1979). The Court observed that the failure of a trial court to give an instruction on circumstantial evidence after acknowledging it would do so is “fundamentally unfair and requires reversal.” Furthermore, the Court stated:
The language in Patskan appears to be unequivocal that where the court fails to give an instruction that it previously agreed to give, and the party requesting it relies on it in closing argument, it is reversible error.
See also, cf., People v Brown, 136 AD2d 1, 16; 525 NYS2d 618 (1988); People v Reina, 94 AD2d 727; 462 NYS2d 264 (1983).
Herring, supra at 860.
Similarly, other jurisdictions have also concluded such errors as the one now before this Court to be constitutional in nature. See, cf., State v Barton, 936 SW2d 781 (Mo, 1996). In Barton, the defendant argued that the trial court abused its discretion when it sustained the people’s objection to defense counsel’s closing argument, even though the argument was supported by credible evidence on the record. The Supreme Court of Missouri held, notwithstanding that
[t]he vast majority of case law in Missouri has resolved this issue in favor of a finding of no prejudice because of overwhelming evidence against the defendant. . . . [The] defendant has the right to a fair and impartial trial, [which includes] a reasonable opportunity to present the defendant’s theory of the case during closing argument. [Id. at 787, 783, citing US Const, Am VI; Mo Const, art I, § 18(a); Herring, supra at 860-861; and State v Williams, 681 SW2d 948, 950 (Mo App, 1984).]
While, in Murray v State, 857 SW2d 806 (Tex App, 1993), the defendant averred that the trial court’s supplementation of the jury charge, after the jury had already begun deliberating, violated his Sixth Amendment right to effective assistance of counsel. The Murray court initially observed that the United States Supreme Court has “ ‘uniformly found constitutional error without any showing of prejudice when counsel was . . . prevented from assisting the accused during a critical stage of the proceeding.’ ” Id. at 809, quoting Cronic, supra at 659, n 25. The court added that “[o]ne such critical stage is the closing argument.” Id. at 810, citing Herring, supra at 858-859.
*599Commensurate with the fundamental nature of the error before it, the court concluded, inter alia, that defendant’s counsel, without notice that the court would give the supplemental instruction, was misled in his defense, and, as a result, the court effectively repudiated the defendant’s argument; an argument the court originally allowed. Murray, supra at 808-811.
See also, cf., North Carolina v Miller, 477 SE2d 915, 924 (NC, 1996); People v Marshall, 13 Cal 4th 799, 853; 919 P2d 1280 (1996); South Carolina v Mouzon, 467 SE2d 122, 124-125 (SC, 1995); People v Middleton, 212 AD2d 809, 811; 623 NYS2d 298 (1995); People v Rodrigues, 8 Cal 4th 1060, 1183; 885 P2d 1 (1994); State v Crooks, 884 SW2d 90, 94 (Mo App, 1994); Moore v State, 848 SW2d 920, 923 (Tex App, 1993); Hickey v State, 484 So 2d 1271, 1274 (Fla, 1986); State v Williams, supra at 950, citing Herring, supra; United States v King, 650 F2d 534 (CA 4, 1981); Ruedas v Texas, 586 SW2d 520, 523-524 (Tex Crim App, 1979); State v Page, 21 Mo 257, 259 (1855).
Consequently, I agree with the lead opinion that “not every instance of this type of . . . error will require reversal.” Ante, p 587. However, I find Mateo, n 1 supra, to be inapplicable under these particular circumstances. My concern in framing this error as constitutional is significant because I believe it is dispositive of whether the circumstances demand a new trial. If Mateo is applied, the relief sought by defendant may not be warranted.
Under Mateo, n 1 supra at 206-207, the reviewing court, “examin[ing] the record as a whole . . . [and] . . . engag[ing] in a comparative analysis of the likely effect of the error in light of the other evidence . . . [determines] the actual prejudicial effect of the error on the factfinder in the case at hand.” Id., citing People v Lee, 434 Mich 59; 450 NW2d 883 (1990). If the court finds “overwhelming evidence of guilt,” then “it is unnecessary to reach the question of the level of confidence the reviewing court must have in the harmlessness of preserved error,” i.e., “highly probable, more probable than not, and a reasonable likelihood that the error affected substantial rights.” Mateo, n 1 supra at 219.
Accordingly, if this Court were to find “overwhelming evidence of [defendant’s] guilt,” which arguably there is, her conviction must be affirmed.
See, e.g., Argersinger v Hamlin, 407 US 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972), and Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (assistance of counsel); Ducan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968) (jury trial); Washington v Texas, 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967) (compulsory process); Klopfer v North Carolina, 386 US 213; 87 S Ct 988; 18 L Ed 2d 1 (1967) (speedy trial); Pointer v Texas, 380 US 400; 85 S Ct 1065; 13 L Ed 2d 923 (1965) (confrontation); Payne v Arkansas, 356 US 560; 78 S Ct 844; 2 L Ed 2d 975 (1958) (coerced confession); In re Oliver, 333 US 257; 68 S Ct 499; 92 L Ed 682 (1948) (public trial); Cole v Arkansas, 333 US 196; 68 S Ct 514; 92 L Ed 644 (1948) (notice of nature and cause of accusation); Turney v Ohio, 273 US 510; 47 S Ct 437; 71 L Ed 749 (1927) (impartial judge).
In Anderson, supra at 405, we observed that these errors include the deprivation of “trial counsel, an impartial judge, excluding grand jury members who are the same race as defendant, denial of the right to self-representation, denial of the right to a public trial, and a constitutionally improper reasonable doubt instruction.”
See Chapman, supra at 24, where the Court held:
[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.
Ante, p 588, n 14, citing Anderson, supra at 405.
Id. See also Fulminante, supra at 309.
In Chapman, supra at 22, the Court declined to adopt an automatic rule of reversal because “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless . . . .”
On this basis, in order to determine whether defendant was prejudiced, inquiry must be made into what effect the trial court’s error in granting defense counsel’s amendment had on the jury’s verdict or reasonably may be inferred to have had on its verdict. Lee, n 7 supra at 86, quoting Young, n 1 supra at 505. If it is reasonably clear to the reviewing court after weighing “the error’s effect against the entire setting of the record without relation to the verdict or judgment” that the error had no prejudicial effect on the substantial rights of defendant, then it may conclude that the error was harmless. Kotteakos, n 1 supra at 764; Lee, n 7 supra at 86, citing Young, supra.
Ante, pp 589-590.
The lead opinion similarly stated that “[bjecause we cannot say with confidence that this did not affect the jury’s final outcome or that, had the court charged the jury with the modified instruction, the defendant would not have been acquitted, we would affirm the decision of the Court of Appeals and would hold that the defendant is entitled to a new trial.” Ante, p 594.
The people contend that defense counsel failed to adhere to MCR 2.516(A)(1) and 6.414(F) (the requested instructions must be submitted in writing to the trial court). However, the people’s contention is lacking because it agreed to the amendment before defense counsel’s closing argument. Hence, the people waived its right to object.
The people also contend that defense counsel created the error in the instructions by suggesting an amendment of the wording after he agreed to the instructions upon which the people based its closing argument. This contention is also baseless because the people, at the sidebar conference held immediately before defense counsel’s closing argument, consented to the amendment and did not object until after defense counsel had based his closing argument on the amendment.
A review of the record discloses that the people, not defense counsel, first expressed “death" as an essential element of the crime as charged. Specifically, the people stated in its closing argument:
[Defendant] knew [restricting fluids] was wrong and it was ... a concern not to give [Rodney] fluids. [Defendant] knew because the doctors told her that his bed-wetting — you should only restrict in evenings, that she discharged him on a general diet. An *604ordinary person would know that it is not prudent and it would be dangerous to restrict fluids to a young child and that could result in the death. [Emphasis added.]
In Kotteakos, supra at 764, the Court stated:
[T]he question is not [whether the jury was] right in their judgment . . . [but] rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.
Ante, p 591.
See CJI2d 16.16.