When a defendant's attorney-client privilege is breached, is it a "structural defect" in the trial process, rather than a "trial error"?

By contrast, the high court said, other errors are "structural defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Arizona v. Fulminante, supra, 499 U.S. at p. ----, 111 S.Ct. at p. 1265.) Such structural defects include [846 P.2d 756] denial of the right to public trial, and denial of the right to self-representation. (Ibid.)

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When the prosecution unlawfully gains access to defense trial strategy, that violation of the defendant's rights is not curable by an exclusionary remedy, because the harm of the violation is not that it produced evidence that was unlawfully obtained, and there is nothing to exclude. Nor is it susceptible to a harmless error analysis, because the constitutional violation did not occur "during the presentation of the case to the jury," and therefore may not be "quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Arizona v. Fulminante, supra, 499 U.S. at p. ----, 111 S.Ct. at p. 1264.) In other words, such a violation of the attorney-client privilege and the Sixth Amendment right to counsel is more akin to a "structural defect" than to a "trial error," to use the phraseology of the majority in Arizona v. Fulminante.