Also known as: plain-error rule · plain error
Written by attorneys — see sources below.
A doctrine that permits an appellate court to consider a plain error affecting substantial rights even though the error was not brought to the trial court's attention.
Paul Peterson stood trial for mail fraud. The judge instructed the jury that it could treat Peterson's decision not to testify as evidence of guilt. Defense counsel raised no objection. On appeal the court examined the instruction under the plain error rule because the error was obvious, affected Peterson's substantial rights by undermining the presumption of innocence, and warranted correction to preserve the integrity of the proceedings.
Pablo Perez was convicted after an alternate juror joined deliberations without objection at trial. On appeal Perez argued the substitution violated his rights. The court applied the plain error rule, found the error plain and prejudicial to substantial rights, and exercised discretion to reverse because the defect undermined the fairness of the jury process.
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 casePriya Prasad lost a contract suit after the trial court admitted disputed documents without objection. On appeal Prasad sought reversal under the plain error rule. The court declined to apply the doctrine because the error did not affect substantial rights.
In September 1980 respondent Catrett, as administratrix of her husband's estate, commenced a wrongful-death action in the Superior Court of the District of Columbia against fifteen named corporations including petitioner Celotex Corporation. The complaint alleged that her husband Louis H. Catrett died in 1979 from exposure to asbestos products manufactured or distributed by the defendants. The action was removed to the United States District Court for the District of Columbia on diversity grounds. After extensive discovery Celotex filed a motion for summary judgment in September 1981 asserting that respondent had failed to produce any evidence that the decedent had been exposed to Celotex asbestos products. In response respondent produced a transcript of the decedent's deposition taken in a separate California proceeding, a letter from an official of one of Celotex's former insurance companies, and a letter from one of Celotex's customers. In July 1982 the District Court granted summary judgment to Celotex on the ground that respondent had made no showing of exposure to Celotex products in the District of Columbia or elsewhere within the statutory period. Respondent appealed only that ruling. A divided panel of the Court of Appeals for the District of Columbia Circuit reversed, holding that Celotex had failed to meet its initial burden because it made no effort to adduce affirmative evidence supporting its motion. The Supreme Court granted certiorari to resolve a conflict among the circuits concerning the proper standard under Rule 56.
View casePhilip Powell was tried without a jury after the court accepted a waiver without proper colloquy. Defense counsel did not object. On appeal Powell invoked the plain error rule. The court found the error plain and affecting substantial rights but declined reversal.
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 casePamela Phillips was convicted under a firearms statute and raised a constitutional challenge for the first time on appeal. The court reviewed for plain error. It held the error was not plain under then-existing law and therefore did not reach the question of substantial rights.
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 casePilar Pena was convicted after the prosecutor commented on her failure to testify. No objection was made at trial. On appeal the court applied the plain error rule, found the comment plain and prejudicial to substantial rights, and reversed because the error seriously affected the fairness of the trial.
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 caseA defendant must show an error that is plain, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. The rule balances the need for timely objections against the imperative to correct serious miscarriages of justice.
Supporting sources
The doctrine is most commonly applied in criminal cases because courts have a special duty to assure defendants are not convicted unfairly. In civil cases the rule is invoked sparingly and only when the error is clear and affects substantial rights.
The rule encourages timely objections so errors can be corrected at trial without appellate intervention. This policy is especially important for jury instructions where the trial judge can correct mistakes before deliberations begin.
Supporting sources
Strong independent evidence of guilt can show that an unpreserved error did not affect substantial rights because there is no reasonable probability the error contributed to the conviction. The error must still be plain and seriously affect fairness before reversal is warranted.
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…