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Plain Error, § 901.03 – Generally

State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro

Issue/Holding:

¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine, which allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642, 734 N.W.2d 115. Plain error is “error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial,” and courts should use the plain error doctrine sparingly. Id.¶13      There is no bright-line rule for what constitutes plain error. … “[W]here a basic constitutional right has not been extended to the accused,” the plain error doctrine should be invoked. Id. at 195. Our courts have consistently used this constitutional error standard in determining whether to apply the plain error rule. State v. King, 205 Wis. 2d 81, 91, 555 N.W.2d 189 (Ct. App.1996).

¶14      If plain error occurred, the burden is on the State to prove that it was harmless beyond a reasonable doubt. …

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