Also known as: plain-error review · plain error · plain-error doctrine · Rule 52(b)
Written by attorneys — see sources below.
A standard of appellate review in criminal cases that permits a court to address an obvious error affecting substantial rights even when the defendant did not object at trial.
Pierre Poulin managed a retail store and stood trial in federal court for embezzlement. The prosecutor told the jury during closing that Poulin had to prove where the missing cash had gone. Defense counsel stayed silent. On appeal the court reviewed the comment under plain error review because it affected Poulin's substantial rights by shifting the burden of proof.
Pedro Pacheco faced federal mail fraud charges. The trial court instructed the jury that Pacheco's failure to testify could serve as evidence of guilt. Defense counsel did not object. The appellate court considered the instruction on plain error review because the error was plain and implicated Pacheco's Fifth Amendment rights.
In 1986, Guy W. Olano, Jr., and Raymond M. Gray were indicted in the Western District of Washington on multiple federal charges for their participation in a loan kickback scheme while serving on the board of a savings and loan association. Their joint jury trial with five codefendants commenced in March 1987. All parties agreed that fourteen jurors would be selected, with the two alternates identified before deliberations began. On May 26, 1987, shortly before the end of the three-month trial, the district court suggested allowing the two alternate jurors to attend deliberations without participating. The court raised the matter again the next day in an exchange with Gray's counsel. On May 28, the final day of trial, counsel for defendant Davy Hilling gave an affirmative response that all fourteen could deliberate, with instructions that the alternates not participate; Olano's and Gray's counsel were present and did not object. The district court instructed the jurors that the alternates would attend deliberations but must not participate. One alternate was excused during deliberations at his own request, while the other remained until the jury returned its verdict. Both Olano and Gray were convicted. Olano and Gray appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit reversed certain counts for insufficient evidence and then considered the presence of alternate jurors during deliberations under Federal Rule of Criminal Procedure 24(c). Because no objection had been made at trial, the court applied a plain error standard, held that the violation was inherently prejudicial, and reversed the remaining convictions. The Supreme Court granted certiorari to clarify the standard for plain error review by the courts of appeals under Rule 52(b).
View casePamela Phillips was convicted of a capital offense in federal court. The judge found aggravating factors that increased her sentence without submitting them to the jury. Defense counsel raised no objection at trial. The appellate court reached the claim on plain error review because the error affected Phillips's substantial rights under the Sixth Amendment.
In September 1994, a Wells Fargo armored van pulled up to the drive-up window of a bank in Glendale, Arizona. Inside the van were a driver, a guard, and a messenger carrying a bag with more than $270,000 in cash. As the van waited for the bank to open, a man armed with a rifle approached the driver's side of the van while another man armed with a handgun approached the passenger side. The man with the rifle shot and killed the driver. The man with the handgun shot at the guard but missed. The guard returned fire, shooting and wounding the man with the handgun. The wounded man with the handgun was later identified as Timothy Ring. Ring was indicted for first-degree murder, conspiracy to commit armed robbery, armed robbery, and other crimes. At trial, the prosecutor presented evidence that Ring and two others had planned to rob the armored van. The jury deadlocked on premeditated murder. It convicted Ring of felony murder occurring in the course of armed robbery. At the sentencing stage of the trial, the judge found two aggravating factors. The judge found that the murder was committed in expectation of pecuniary gain and in an especially heinous, cruel or depraved manner. The judge found one mitigating factor consisting of Ring's minimal criminal record. Finding that the aggravating factors outweighed the mitigating factor, the judge sentenced Ring to death. On appeal, Ring argued that Arizona's capital sentencing scheme violates the Sixth Amendment as interpreted in Apprendi v. New Jersey. The Arizona Supreme Court rejected that claim, relying on Walton v. Arizona, and affirmed Ring's conviction and sentence. The Supreme Court granted certiorari to resolve whether Walton can be reconciled with Apprendi.
View casePaul Peterson was tried in federal court after the government objected to his jury trial request. The trial court denied the request without a proper hearing. Defense counsel did not object contemporaneously. The appellate court examined the denial under plain error review because the error implicated Peterson's fundamental right to a jury trial.
Petitioner Singer was charged in federal district court with thirty counts of violating the mail fraud statute, 18 U.S.C. § 1341. According to the indictment, Singer had used the mails to deceive amateur songwriters by soliciting payments from them for the supposed marketing of their songs. At the start of trial, Singer submitted a written waiver of his right to a jury trial, stating that the purpose was to shorten the proceedings. The district court indicated its willingness to accept the waiver, yet the Government declined to provide its required consent. After the jury trial proceeded, Singer was found guilty on twenty-nine of the thirty counts. The Ninth Circuit Court of Appeals affirmed the convictions. The Supreme Court of the United States granted certiorari in order to address whether federal criminal defendants possess an unconditional constitutional right to insist upon a bench trial.
View caseParker Phillips was convicted under a federal firearms statute. The trial court rejected a constitutional challenge to the statute without defense objection. On appeal the court considered the claim under plain error review because the error affected Phillips's substantial rights by potentially invalidating the conviction.
In 1995 Samuel Mullet purchased land in Jefferson County, Ohio. That land became the Bergholz Amish community in 2001 when a sufficient number of ordained ministers qualified it as a separate Amish church district. The new community appointed Mullet as its bishop. As bishop, Mullet controlled all aspects of life in the Bergholz compound and had the ability to order the shunning of community members who failed to follow the tenets of their Amish faith. In 2006 Mullet excommunicated several church members who questioned Bergholz community practices and his leadership. Included in the group were Lavern and Mattie Troyer, whose son Aden was married to Mullet's daughter Wilma, as well as Melvin and Anna Shrock, whose son Emanuel was married to Mullet's daughter Linda. The excommunications led to family divisions, including a divorce and a custody dispute. Amish bishops from across the country met and voted unanimously to reverse the excommunications. From September 6 to November 9, 2011, several Bergholz community members committed five separate attacks on nine different individuals connected to the community by family or religious ties. The assailants sliced off the men's beards and cut the women's hair. The victims were seen as Amish hypocrites by the assailants. A federal grand jury indicted sixteen members of the Bergholz community for violating and conspiring to violate the Hate Crimes Prevention Act, as well as other charges. At trial, the government presented evidence that the assaults were motivated by the victims' religion, while the defendants presented evidence of personal and family disputes as alternative motives. The jury convicted all sixteen defendants of at least one hate-crime violation. The district court instructed the jury that the victims' religion need only be a significant motivating factor even if other reasons existed. The defendants twice requested a but-for causation instruction, which the court rejected. The defendants appealed their convictions to the United States Court of Appeals for the Sixth Circuit.
View casePhuong Pham was convicted after the trial court admitted certain testimony without a timely defense objection. New counsel argued on appeal that the admission violated Pham's rights. The appellate court applied plain error review because the error was plain on the record and affected Pham's substantial rights.
Appellants Harris and Hart were jointly tried and convicted by a jury of first-degree murder. The government's evidence rested principally on the testimony of an eyewitness to the homicide who stated that he was inside the Federal City Liquor Store at 943 Ninth Street, N.W., at approximately 2:30 on the afternoon of January 21, 1975, when appellants and two other men, one of whom became the murder victim, entered the store. They appeared to the witness to be somewhat intoxicated. An argument ensued between Hart and the victim regarding a gun, and Hart pulled an ice pick out of his coat pocket and held it in his hands towards the victim's face. Hart then told the victim you are going to get my gun or else I am gonna kill you. According to the eyewitness, Harris then stated let's kill the victim. When the manager of the liquor store insisted they take the argument outside, Hart, the victim, and an unidentified third man left the premises, crossed the street and turned into a nearby alley. Harris followed shortly thereafter but he did not enter the alley until after the unidentified third man exited the alley and proceeded down Ninth Street. The witness then left the liquor store and walked down the street to get a direct view of the alley. A scuffle had started between the three men. Harris grabbed the victim from the back. The man was wrestled to the ground by both defendants and Harris struck him on top of the head. Hart then proceeded to stab the victim repeatedly with the ice pick. A second government witness was outside the liquor store during the time in which the homicide was committed. He testified that as Hart crossed the street he was holding the victim behind his neck. He also recalled that as Harris walked past him he said he stole his pistol and he is going to kill him. On January 22, 1975, the day after the homicide, the witness was shown an array of 10 photographs and he positively identified appellant Hart as the man who had been holding the victim behind the neck. Before his grand jury testimony on February 21, 1975, the witness was shown the exact same array of photographs with the exception that appellant Hart's photograph had been removed and replaced by a picture of Harris, and on that occasion the witness made a positive identification of Harris. Harris challenged his conviction on the ground that the court at a pretrial suppression hearing erroneously denied his motion to suppress identification evidence, and both appellants challenged the denial of their motions for judgment of acquittal.
View caseFederal Rule of Criminal Procedure 52(b) permits review when the error is plain and affects substantial rights. The rule balances finality with the need to correct serious errors that undermine fairness. Courts apply a four-part test requiring an error that is plain, affects substantial rights, and seriously affects the fairness or integrity of the proceedings.
Supporting sources
Yes when the comment directly undermines the presumption of innocence and likely influenced the verdict. The error is plain because it violates a core constitutional protection. Courts may reach the issue even without an objection because the remark affects substantial rights.
Supporting sources
The defendant must establish that the instruction was erroneous, the error was plain, it affected substantial rights, and it seriously undermined the fairness of the proceedings. An instruction permitting the jury to treat silence as evidence of guilt satisfies the first three prongs when the evidence of guilt is not overwhelming.
Supporting sources
No. The strength of the evidence is relevant to whether the error affected substantial rights, but the court may still consider the claim if the error is plain and constitutional in nature. Overwhelming independent evidence may lead the court to conclude the error did not affect the outcome.
Supporting sources
…. . in its legitimacy, a product of substance and perception," ante , at 865, the "substance" part of the equation demands that plain error be acknowledged and eliminated. Roe was plainly wrong—even on the Court's methodology of "reasoned judgment," and even more so (of course) if the proper criteria of text and tradition are…