Introduction

Plain Error Review

Introduction

A defendant convicted at trial sometimes reaches the court of appeals with a complaint that nobody voiced in the courtroom: a jury instruction that misstated the law, for instance, or a person present in the jury room who should not have been there. The usual consequence of that silence is that the complaint is lost, because appellate courts review what the trial judge was given a chance to decide, and a party who says nothing while the judge could still fix the problem ordinarily cannot raise it later. A practice that was rigid and undeviating, under which reviewing courts refused every question not specifically urged below, would be out of harmony with the rules of fundamental justice.¹ Federal Rule of Criminal Procedure 52(b) is where federal criminal practice resolves that tension.

The rule reads in a single sentence: a plain error that affects substantial rights may be considered even though it was not brought to the court's attention.² The word "may" matters, because it makes the appellate court's power to act a matter of discretion and does not create a right to relief. In everyday terms, a plain error is a mistake so obvious that an appellate court should address it despite the missing objection.³ The Supreme Court's framework for applying the rule comes from United States v. Olano, where no one objected at trial to the presence of alternate jurors during deliberations, and the question was whether that was a plain error the court of appeals was authorized to correct.⁴ The Court described the authority Rule 52(b) creates as circumscribed, which means the rule does not open appellate review to every forfeited claim.⁵

Rule 52(b) has a companion in Rule 52(a), which directs courts to disregard any error that does not affect substantial rights.⁶ Read together, the two subsections sort errors by whether the defendant preserved them: subsection (a) governs errors the trial court was told about, and subsection (b) governs errors it was not. This chapter follows that sorting in three steps. It begins with why an unraised error is normally forfeited, then works through the gate an appellant must pass before a court of appeals may correct such an error, and finally compares plain-error review with harmless-error review, including who carries the burden on prejudice in each. The first step is the default rule that Rule 52(b) departs from, the forfeiture of claims that were never preserved for appeal.