§ 6.11 Plain Error Rule: FRE 103(e)

• Jurisdiction: United States

§ 6.11 Plain Error Rule: FRE 103(e)

Federal Rule 103(e) recognizes the plain error doctrine, under which an appellate court may consider an evidentiary error despite a party's failure to make an objection, a motion to strike, or an offer of proof at trial.⁸⁹ The purpose of this doctrine is to safeguard the right to a fair trial, notwithstanding counsel's failure to object or make an offer of proof. In short, some errors are simply too great to tolerate—even in the absence of an objection. Criminal Rule 52 specifically recognizes the plain error doctrine in criminal cases.⁹⁰ The doctrine has also been applied, although rarely, to civil cases.⁹¹

Attempts to define plain error have not been particularly helpful—perhaps because no formulae can adequately cover all situations.⁹² A student once put it this way: "It has to knock your socks off." The Supreme Court was more elaborate, if not more informative, when it wrote the error must seriously affect "the fairness, integrity or public reputation of judicial proceedings."⁹³ In another case, the Court commented that the appellant must demonstrate that: (1) there is an "error"; (2) the error is "clear or obvious, rather than subject to reasonable dispute"; (3) the error "affected the appellant's substantial rights, which in the ordinary case means" it "affected the outcome of the district court proceedings"; and (4) "the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings."⁹⁴

In criminal cases, plain error will often come close to ineffective assistance of counsel under the Sixth Amendment right to counsel.⁹⁵

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Notes:

^[89] As the federal drafters noted, "the application of the plain error rule will be more likely with respect to the admission of evidence than to exclusion, since failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the error." Fed. R. Evid. 103 advisory committee's note. See also United States v. Raymond, 697 F.3d 32, 38 (1st Cir. 2012) ("Of course, even forfeited claims may be reviewed for plain error.").

^[90] Fed. R. Crim. P. 52(b).

^[91] See Fed. R. Evid. 103 advisory committee's note.

^[92] See United States v. Olano, 507 U.S. 725, 732 (1993) ("Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affect[s] the fairness, integrity or public...