Concept

Plain Error Review

Requests for and objections to jury instructions

Plain Error Review

Rule 51(d)(2) cuts one exception out of the forfeiture rules just described: a court "may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights."¹ Unpreserved complaints of that kind are reviewed for plain error.² The two preceding subsections each ended with a party that lost its right to complain on appeal, either by failing to object to an instruction the court gave or by failing to request an instruction and to object to its omission. Plain-error review is the narrow door left open after that loss.

The rule's verb sets the terms. The court of appeals "may" take up an unpreserved error and is never required to, so a party that skipped the objection holds no entitlement to review and can only ask for it.³ Appellate courts are courts of review, not of original action, and because of the limits that role imposes, the ordinary rule is that, absent exceptional circumstances, a party may not raise on appeal an error it never asked the trial court to correct.⁴ Plain error is the exception for instructions, and it has to stay small if the preservation rule is to mean anything, since an exception that opened easily would swallow the rule it modifies.

A dissent in City of Newport v. Fact Concerts, Inc. quotes the First Circuit on the scale of the exception: any plain-error exception to Rule 51 "should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings."⁵ A dissent decides nothing, and that passage predates the 2003 amendments that wrote the exception into the rule's text. The later decisions below describe the same narrow scale.

The appellant must clear several layers. The error must be plain in the sense of obvious, it must affect substantial rights, and it must seriously affect the fairness, integrity, or public reputation of judicial proceedings.⁶ Courts state the test in the same demanding terms. They ask for an error that is obvious and clear under current law, that affects substantial rights, and that threatens a miscarriage of justice, and they interpret the test stringently.⁷ The First Circuit has also collected the circumstances in which it excuses a failure to raise a claim below, and the categories are restrictive: issues of constitutional magnitude, omitted arguments that are highly persuasive, special prejudice to the opponent, and issues of great importance to the public.⁸

Each layer filters out a different kind of appeal. Obviousness ties the exception to the state of the law. An error on a question the law has not settled cannot be obvious, because the trial judge had no clear rule to follow and the objecting party had none to cite. The Newport dissent shows the point at work: it says the majority "frankly admits that the instruction was not plain error," because the governing principles of law were "currently in a state of evolving definition and uncertainty."⁹ The courts of appeals have not always agreed even on when a failure to instruct amounts to plain error, so no single decision marks a bright line.¹⁰ The substantial-rights layer screens out obvious slips that changed nothing for the parties. The last layer looks at the proceeding as a whole: an obvious error that mattered to this appellant still fails unless it threatens the fairness, integrity, or public reputation of the trial.

Exam Analysis Steps

Plain error is a fallback that applies only after preservation has failed, so it is best run as a sequence of screens. The appellant must pass each one:

Confirm that the party failed to preserve the point under Rule 51(d)(1), either by not objecting properly to an instruction given or by not requesting, and objecting to the omission of, an instruction. If the point was preserved, ordinary review applies and this doctrine is not needed.
Ask whether the error was plain, meaning obvious and clear under the law. An error resting on an unsettled question is not.
Ask whether the error affects the appellant's substantial rights, so that an obvious but inconsequential slip does not qualify.
Ask whether the error seriously affects the fairness, integrity, or public reputation of the proceedings, the layer that confines the exception to exceptional cases.
Recognize that even when every layer is met the court may decline to act, and that the appellant, who is asking for an exception to the ordinary rule, has to make the showing.

Few appellants win on this ground. Exceptions to the contemporaneous-objection requirement are narrow and the success rate is low, which is why Judge Aldisert's advice is to "preserve the issue at all costs."¹¹ In Elgabri v. Lekas, decided under the earlier text of Rule 51, the court of appeals noted the absence of compliance with the rule and reviewed for plain error. It added that the plain-error rule "should be applied sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice."¹² Language like that explains why most unpreserved complaints about the charge go nowhere.

Hardin v. Ski Venture, Inc. shows the same restraint from another angle. The Fourth Circuit held that the instructions accurately covered all the issues in the case, so the failure to mention specific aspects of a party's contentions, such as the direction of the snow gun or the wetness of the snow, could not support a finding of error.¹³ The court contrasted a case in which the trial court fails to instruct on an entire issue or claim presented by the plaintiff's evidence.¹⁴ A discussion of the decision adds that, had the plaintiff failed to object, plain error would not have rescued him unless the failure to give his requested instructions fit one of the restrictive categories.¹⁵

The scene below sits on the far side of Hardin's line, because an entire issue is missing from the charge and not just one party's phrasing.

Hypothetical Illustration

A trucking collision case goes to the jury on a charge that lists duty, breach, and damages but never mentions causation, so the jury is told it may find for the plaintiff on proof of those three alone. Causation was the central contested issue at trial, because the defendant argued that the plaintiff's injuries predated the crash, and settled law requires the plaintiff to prove it. At the charge conference the judge announced the instruction as drafted, and defense counsel said nothing. Counsel said nothing again when the charge was read. The jury returns a verdict for the plaintiff, and the defendant appeals without ever having preserved the point. The omission is obvious under settled law. It removed an essential element on the very question the trial was fought over, and it likely decided the outcome. The defendant can therefore ask the court of appeals to exercise its discretion to notice the error, though the court remains free to decline.

That scene is built for teaching, so it shows what each layer looks for and does not predict how any panel would rule. Change one fact and the picture shifts. If courts disagreed about whether causation was an element of the claim, the omission would not be obvious. The party's own conduct matters as well. A lawyer who stayed silent on purpose presents a weaker case than one whose objection simply slipped, because the inadvertence with which an available objection goes unpressed can bear on the equitable decision whether to treat an error as plain.¹⁶ The Seventh Circuit's decision in Williams v. Dieball, 724 F.3d 957, 961–63 (7th Cir. 2013), explores these distinctions at length.¹⁷

Plain error is not the only route around an unobjected instruction. A properly framed motion for judgment as a matter of law under Rule 50 can challenge the legal rulings embedded in the instructions even though no one objected, and on such a motion the appellate court applies the law as it should be and not the law as it was read to the jury.¹⁸ That route has its own requirements, which this section does not develop. It matters here only because a failure to object under Rule 51 does not close every door.

Exam stems that end with an appeal after a failure to object usually test two points. A student who treats plain error as an automatic second chance forgets that the rule says "may" and that its layers are demanding. A student who treats every wrong instruction as plain forgets that wrongness is only where the inquiry starts and that an error on unsettled law is not obvious. Plain error also differs from the prejudice question that governs preserved errors, which the next section takes up.

Plain Error Review

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