Also known as: plain-error test · plain error · plain errors · plain error rule · plain error review
Written by attorneys · grounded in primary & secondary sources — see below
A standard of appellate review that permits a court to correct an unpreserved error when (1) an error occurred, (2) the error is plain, (3) the error affects substantial rights, and (4) the error seriously undermines the fairness, integrity, or public reputation of the proceedings.
During closing argument the prosecutor told the jury that Carrie had to prove where the missing cash had gone. Defense counsel remained silent. After conviction Carrie raised the issue for the first time in a post-trial motion. The appellate court may reach the claim because the remark affected substantial rights even though no objection was made at trial.
The district court permitted alternate jurors to remain in the jury room during deliberations without objection from the defense. On appeal the defendants argued that the presence of the alternates violated the rules. The court of appeals may consider the claim under the plain error test because the error was plain at the time of review and implicated the defendants' substantial rights.
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The trial court instructed the jury that Angelica's failure to testify could serve as evidence of guilt. Defense counsel did not object. After conviction Angelica raised the issue on appeal. The court of appeals may review the instruction because it was plain error that affected substantial rights.
The prosecutor commented on the defendant's failure to testify during closing argument. Defense counsel remained silent throughout trial. After conviction the defendant sought reversal on appeal. The appellate court may consider the claim under the plain error test because the comment implicated a core constitutional protection.
The prosecution introduced hearsay statements without objection at trial. After conviction the defendant moved to strike the testimony on appeal. The court may reach the issue under the plain error test because the admission affected substantial rights and was plain on the record.
The trial court instructed the jury that it could consider Kimberly's decision not to testify as evidence of guilt. Defense counsel made no objection. After conviction Kimberly challenged the instruction on appeal. The appellate court may review the claim because the error was plain and affected substantial rights.
The test requires an error that is plain at the time of appellate review, that affects the defendant's substantial rights, and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. The defendant bears the burden of establishing each element.
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The defendant must show that each of the four requirements is satisfied. In contrast, when harmless error analysis applies the government bears the burden of showing that the error did not affect substantial rights.
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No. The rule applies whenever an error affects substantial rights. Structural error is only one category that automatically satisfies the test. Other errors that undermine fairness also qualify.
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The court may consider the error if it is plain, affects substantial rights, and seriously undermines the fairness or integrity of the proceedings. The rule exists to prevent forfeiture of fundamental rights through inadvertence by counsel.
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…. . 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…