This article explains plain error as applied in Federal appeals. To preserve an error for review appeal, a party must make a specific contemporaneous objection. Failing to do so can have disastrous consequences. Before delving into an explanation of plain error, an overview about preserving issues for appeal is in order.
Preserving Errors for Appeal and the Ability to Appeal Unpreserved Errors
In Federal court, to preserve an error for review and correction on appeal, a party must make a specific and contemporaneous objection to the perceived error. See U.S. v. Olano, 507 U.S. 725, 731 (1993) (discussing plain error as an exception to the well-established rule that “a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”).
A specific contemporaneous objection means that the objection must be made immediately after, or very shortly after, the error occurs and it must specifically address the perceived error. This Rule is reflected in Federal Rule of Evidence 103, which provides:
“A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.”
See Fed. R. Evid. 103(a).
A party that fails to preserve an error for appeal, by making a specific contemporaneous objection, will be prevented from raising the error as a basis for appeal. See U.S. v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (explaining that because the defendant did not preserve the sentence issue by objecting in the district court, review was only for plain error); U.S. v. Humphrey, 164 F.3d 585, 587 (11th Cir. 1999) (“The appropriate standard of review, given [the defendant]’s failure to object in the district court to the consecutive sentences, is plain error.”).
According to the Eleventh Circuit Court of Appeal, “[t]he narrowness of the plain error rule is a reflection of the importance, indeed necessity, of the contemporaneous objection rule to which it is an exception.” U.S. v. Pielago, 135 F.3d 703, 709 (11th Cir.1998). Requiring an objection at trial “fosters finality of judgment and deters ‘sandbagging,’ saving an issue for appeal in hopes of having another shot at trial if the first one misses.” Id.
Additionally, “requiring timely objections allows trial courts to develop a full record on the issue, consider the matter, and correct any error before substantial judicial resources are wasted on appeal and then in an unnecessary retrial.” U.S. v. Rodriguez, 627 F.3d 1372, 1379 (11th Cir. 2010) (quotation omitted). As the Court explained, “[a] full record and a prior decision in the district court are essential ingredients to our substantive review of issues-they flesh out an issue in a way the parties’ briefs may not.” Id.
In short, a Federal appellate court will not even consider an issue if it was not “preserved for appeal” by making a specific contemporaneous objection. However, there is an exception to this requirement. Under Federal law, an error that was not objected may be for “plain error.” See Olano, 507 U.S. at 731.
Plain Error in Federal Appeals
Unlike Florida’s appeal courts, which employ the “fundamental error” exception to unpreserved errors, the Federal courts utilize a doctrine called “plain error.” Olano, 507 U.S. at 732. “Plain error review is an extremely stringent form of review.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999). “Only in rare cases will a trial court be reversed for plain error.” Id.
The United States Supreme Court outlined four requirements for plain error:
- an error occurred;
- the error was plain;
- it affected substantial rights; and
- not correcting the error would seriously affect the fairness of the judicial proceeding.
Olano, 507 U.S. at 732. The Court has indicated that the fourth prong of this analysis is meant to be applied on a case-specific and fact-intensive basis. See 12 A Cyc. of Federal Proc. § 51:30 (3d ed).
Courts in the Eleventh Circuit define an “error” as a “[d]eviation from a legal rule.” U.S. v. Madden, 733 F.3d 1314, 1322–23 (11th Cir. 2013). To find that the error is “plain,” the “error must be one that is obvious and clear under current law.” Id. at 1322. However, the error need not be plain at the time of the trial so long as the error was rendered plain and obvious in that circuit by the time of the appellate review. See Henderson v. U.S., 568 U.S. 266, 271 (2013).
Courts will find that a plain error affects a party’s substantial rights when the error is “prejudicial.” Madden, 733 F.3d at 1322–23 (citations omitted). “[T]he standard phrased as ‘error that affects substantial rights’ … has previously been taken to mean error with a prejudicial effect on the outcome of a judicial proceeding.” U.S. v. Dominguez Benitez, 542 U.S. 74, 81 (2004). “To affect ‘substantial rights,’ … an error must have ‘substantial and injurious effect or influence in determining the … verdict.’” Id.
Finally, the error must seriously undermine the fairness, integrity, and public reputation of the judicial proceedings. Madden, 733 F.3d at 1322–23. The Supreme Court cases on this issue speak of a need for a showing that the error affected the “outcome of the district court proceedings” in the “ordinary case.” U.S. v. Marcus, 560 U.S. 258, 263 (2010) (quotation omitted). For example, in U.S. v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc), the Court found that “convicting a defendant of an unindicted crime affects the fairness, integrity, and public reputation of judicial proceedings in a manner most serious,” and was therefore plain error.
Plain Error is used in both Federal Civil and Criminal Appeals
Similar to the fundamental error exception applied in Florida’s appeal courts, plain error applies to both criminal and civil appeals in Federal court. However, also similar to Florida’s fundamental error exception, Federal courts are more reluctant to grant relief for plain error in civil cases.
For example, the Eleventh Circuit has held that when a district court constructively amended the indictment against the defendant, the trial court had committed plain error, which required the reversal of that portion of the conviction that was based on the constructively amended indictment. See Madden, 733 F.3d at 1316. Similarly, when the defendant’s conviction was based on inadmissible and unreliable hearsay, the Fifth Circuit found plain error and reversed the judgment of conviction despite the lack of an objection to the evidence at trial. See U.S. v. Brown, 548 F.2d 1194, 1207–08 (5th Cir. 1977).
Conversely, the Eleventh Circuit found no plain error in a civil case where the plaintiff’s counsel made numerous “improper” remarks during closing argument that were prejudicial and should have been excluded. Brough v. Imperial Sterling Ltd., 297 F.3d 1172 (11th Cir. 2002). Further, the Eleventh Circuit found no plain error in a civil case where the trial court gave an incomplete instruction about the burden of proof. Pulliam v. Tallapoosa Cnty. Jail, 185 F.3d 1182 (11th Cir. 1999). See also, Farley, 197 F.3d at 1329-30 (finding trial court did not commit plain error by failing to instruct the jury on the shifting burden in employment discrimination cases).
Structural Errors are a Narrow Subset of Plain Errors
The United States Supreme Court has noted that some plain errors are more egregious than other plain errors. Specifically, the Court has noted the possibility that certain errors, which it calls “structural errors,” might “affect substantial rights” regardless of their actual impact on an appellant’s trial. Marcus, 560 U.S. at 263. In these extremely limited instances, the appealing party does not have to show that the error affected the outcome.
Still, “structural errors,” are a “very limited class of errors that affect the ‘framework within which the trial proceeds.’” Marcus, 560 U.S. at 263. In the case of structural errors, it can often be difficult to assess the impact of the error on the outcome of the case. Id. at 264-65. Indeed, for a long time, what was truly meant by a structural error was never fully clarified by the Court. Id. at 268-69 (Stevens, J., dissenting).
However, in 2017, the Supreme Court attempted to further explain the concept of structural errors. Specifically, the Court discussed the type of errors that should not be deemed harmless beyond a reasonable doubt. See Weaver v. Massachusetts, 137 S. Ct. 1899 (2017). In Weaver, the Court explained that the “purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.” Id. at 1907–08. Thus, the “defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’” Id.
The Court identified three, flexible categories of structural errors:
- those in which the right at issue is not designed to protect the defendant from erroneous conviction, but instead protects some other right (like the right to conduct one’s own defense);
- those in which the effects of the error are simply too hard to measure (like when a defendant is prevented from selecting the attorney of his or her choice); and
- those that result in fundamental unfairness (like the denial of an indigent defendant’s right to an attorney).
Weaver, 137 S. Ct. at 1908.
The Court observed that an error can be deemed structural even if the error does not lead to fundamental unfairness in every case. Weaver, 137 S. Ct. at 1908. Nevertheless, the Court warned that the term “structural error” has no magical significance as a doctrinal matter. Id. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.” Id. at 1910.
Plain Error in Federal Appeals Compared to Fundamental Error in Florida Appeals
There are similarities between the Federal and Florida doctrines dealing with plain and fundamental error, respectively. They both require the unpreserved error to be perceived as a violation of due process or the right to a fair trial which, if left uncorrected, would undermine the public’s confidence in our system of justice.
In both Federal and Florida appeals, the courts are generally more likely to find either plain or fundamental error in criminal rather than civil cases. Similarly, in both jurisdictions, the error must be prejudicial to the complaining party. Some general differences exist between the two doctrines.
The largest difference seems to be that for plain error in Federal cases, the error must be shown to be an error under the existing law of the relevant circuit at the time of the appeal. Florida does not appear to have that requirement, but getting Florida courts to identify new types of fundamental error has proven difficult. Also, the Federal test for plain error is arguably more defined and less subjective. Regardless, whether in Federal court or a Florida court, the best practice is to comply with the contemporaneous objection rule so that it will not be necessary to resort to either an argument of plain error or fundamental error.