Academic journal article Journal of Criminal Law and Criminology

Plain Error Rule - Clarifying Plain Error Analysis under Rule 52(b) of the Federal Rules of Criminal Procedure

Academic journal article Journal of Criminal Law and Criminology

Plain Error Rule - Clarifying Plain Error Analysis under Rule 52(b) of the Federal Rules of Criminal Procedure

Article excerpt


In United States v. Olano,(1) the United States Supreme Court held that the presence of alternate jurors during jury deliberations was not an error that the court of appeals could correct under Rule 52(b) of the Federal Rules of Criminal Procedure.(2) The Court articulated a four-step analysis of plain error review under Rule 52(b).(3) It decided that under that analysis, the defendants needed to show that the presence of alternates during deliberations prejudiced their defense, either specifically or presumptively, before a reviewing court could correct the error pursuant to the Rule.(4) After rejecting the court of appeals' determination that the error was "inherently prejudicial," the Court found that the defendants did not meet their burden of showing prejudice and that the appellate court therefore had no authority to reverse the defendants' convictions.(5)

After reviewing the history of plain error review as it has evolved from the common law to Rule 52(b), this Note argues that Olano was a poor case to use to clarify plain error review. This Note then examines the purpose of the plain error rule and argues that Olano, by rejecting the miscarriage of justice standard for applying Rule 52(b), disserves this purpose. Finally, this Note evaluates the Court's application of Rule 52(b) to the Respondents' case, arguing that the Court's ad hoc approach is consistent with the history and purpose of the Rule but inconsistent with the Court's more ambitious goal of drawing an analytical blueprint of plain error review.


Rule 52(b) of the Federal Rules of Criminal Procedure was drafted as a restatement of the common law.(6) The United States Supreme Court recognized the "plain error doctrine," the common law predecessor of Rule 52(b), at least as far back as 1896. In Wiborg v. United States,(7) Chief Justice Fuller stated that "if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it" even though the defendants in the case had not "duly excepted" to the error at trial.(8) The Court reaffirmed this formulation of the doctrine in Clyatt v. United States,(9) stating that although defendant's counsel did not make a motion for the jury to find the defendant not guilty, Wiborg allowed the Court to determine whether a plain error had been committed "in a matter so vital to the defendant."(10)

Forty years after Wiborg, the Court offered a different articulation of the plain error doctrine. In United States v. Atkinson,(11) the Court explained that "[i]n exceptional circumstances, especially in criminal cases, appellate courts . . . may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings."(12) The Atkinson Court did not cite or discuss Wiborg, but the Atkinson standard seemed to shift the focus of plain error inquiry from the impact of the error on the defendant to the impact of the error on the judicial process.(13)

Rule 52(b) codified the plain error rule in still different terms, providing that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."(14) The Rule did not explain or define the concepts of "plain error" or "affecting substantial rights," although the advisory committee's notes indicated that the Rule was meant to codify the doctrine articulated in Wiborg.(15)

In United States v. Frady,(16) the Supreme Court addressed the plain error rule as codified in Rule 52(b).(17) Frady involved a motion filed under 28 U.S.C. [sections] 2255(18) seeking to vacate Joseph Frady's first degree murder conviction on the grounds that the trial court's jury instructions erroneously required the jury to presume malice, thereby eliminating any chance Frady had of securing a manslaughter conviction. …

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