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SCOTUS will clarify plain error doctrine’s prejudice requirement

Greer v. United States, No. 19-8709, cert. granted 1/11/21; SCOTUSblog page

Question presented: 

Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.

Generally, when defense counsel fails to object to an error he or she forfeits the issue for appeal. However, an appellate court may exercise its discretion to correct a forfeited error where: (1) error in fact occurred; (2) the error is “plain,” (3) the error affects “substantial rights,” and (4) the error affects the fairness, integrity or public reputation of the judicial proceedings. U.S. v. Olano, 507 U.S. 725, 733-734 (1993). This is known as the “plain error doctrine.”

Greer was charged and convicted of being a felon in possession of a firearm, contrary to 18 U.S.C. § 922(g).  While his case was on appeal, SCOTUS decided Rehaif, which held that §922(g) and §924(a)(2) require the government to prove that the defendant knew he possessed a firearm and knew that he belonged to the relevant category of persons barred from possessing a firearm. Greer was convicted and sentenced without proof that he knew he was a felon at the time of his possession. Thus error occurred in his case.

but the 11th Circuit Circuit declined to reverse because Greer failed to satisfy the 3rd and 4th elements of the plain error doctrine, which go to prejudice. It reached this conclusion by considering evidence outside the trial record, including his PSI and his unredacted indictment, to show that he was aware of his status as a felon. None of this had been submitted to the jury. Greer argues that this broad scope of review violated his right to due process.

Wisconsin also has a plain error doctrine. See State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77. SCOTUS’s decision could influence how Wisconsin courts apply the doctrine in this state.

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