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“Plain” error means plain at the time of appeal, not trial

Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011)

When is plain really plain? That’s the plain and simple issue in this case.  During trial, the district court decided a substantive legal question against the defendant.  But while the case was on direct appeal, SCOTUS, in a separate case, settled the legal question in the defendant’s favor, thus prompting a question about whether the district court’s decision in Henderson qualified as “plain error.”

Issue:  “Is the time for determining “plainness” the time when the error is committed, or can an error be “plain” if it is not “plain” until the time the error is reviewed?”  (Slip.  op. at 5).

No, that’s not like asking how many angels can dance on the head of a pin, and the answer is not as plain as the nose on a justice’s face.  (After all, Scalia, Thomas and Alito dissented in this case.)  The question is important because a federal appellate court will not normally correct a legal error made in a criminal trial unless the defendant objected, thereby alerting the trial court to the error.  Rule 52(b) of the Federal Rules of Criminal Procedure, however, makes an exception for a “plain error.”  “Plain” as of when?

Holding:  According to the majority,”plain” means plain at the time of appellate review.  This interpretation furthers the principle that an appellate court must apply the law in effect at the time it renders its decision, works little if any harm to the contemporaneous objection rule, and promotes Rule 52(b)’s purpose of creating a fairness-based exception to the rule.  (Slip op. at 8).

In a dissent that is more “rocky road” than  “plain vanilla,” Justice Scalia says “plain” means plain at the time of trial:

The Court sees no harm in its evisceration of the contemporaneous-objection rule, disbelieving that a lawyer would “deliberately forgo objection now because he perceives some slightly expanded chance to argue for ‘plain error’ later” . . . It is hard to say whether this conclusion springs from a touching faith in the good sportsmanship of criminal defense counsel or an unkind disparagement of their intelligence.    (Slip op., at 14).

You get the picture.  While this decision interprets and applies a federal rule of criminal procedure, Wisconsin also has a “plain error” rule.  See Wis. Stat § 901.03(4). If you find your client in a Henderson-like situation, this decision might come in handy.  Click here for previous On Point posts re § 901.03(4) and “plain error.”

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