Defining the obvious: addressing the use and scope of plain error.

• Author: Erisman, Terri J.

1. INTRODUCTION II. APPELLATE REVIEW GENERALLY III. THE DOCTRINE OF PLAIN ERROR IN THE FEDERAL SYSTEM IV. APPLICATION OF PLAIN ERROR IN THE MILITARY JUSTICE SYSTEM A. Overview of the Military Appellate System B. History of the Plain Error Doctrine in the Military C. Current Standard of Plain Error in the Military 1. Manual for Courts-Martial 2. United States v. Powell a. What Is Plain Error? b. When Must Relief Be Granted for Plain Error? V. A CRITICAL EXAMINATION OF THE MILITARY PLAIN ERROR DOCTRINE VI. PROPOSAL FOR UNIFORM STANDARD A. Courts of Criminal Appeals Should Apply Plain Error B. Standard for Application of the Plain Error Doctrine Should Be Heightened C. The President Should Adopt a Rule Similar to FED. R. CRIM. P. 52(b) VII. CONCLUSION To turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution. (1)

1. INTRODUCTION

   Master Sergeant (MSG) William Birdsall was the father of two boys, ages five and six. (2) At his court-martial, both boys testified that they had been molested by their father, with the older boy claiming to have been anally sodomized about fifty times. (3) Master Sergeant Birdsall took the stand and unequivocally denied the charged sexual abuse, alleging that his wife or mother-in-law had coached the boys. (4) Despite the fact that appellant's older son weighed only forty-five pounds, compared to his father's 215 pound frame, there was no evidence of physical trauma to the boy. (5) The case was a pure contest of credibility between the boys and their father, carried out in the greater context of an apparently contentious divorce proceeding. (6)

   To bolster its case, the government called an expert in psychology and child abuse. (7) The expert asserted that she was qualified to distinguish between "founded" and "unfounded" cases of child sexual abuse. (8) She testified that she could discern no indication that the boys' testimony had been coached. (9) Using her expertise in the area, she determined that their allegations were founded. (10) She definitively stated that, in her professional opinion, the boys were victims of incest by their father, MSG Birdsall. (11) The defense counsel lodged no objection to this testimony (12) and appellant was convicted of committing sodomy, indecent acts, and taking indecent liberties with his children. (13) He was sentenced to a bad-conduct discharge, confinement for ten years, forfeiture of all pay and allowances, and reduction to the grade of E-1. (14)

   Over four years after his original trial, the Court of Appeals for the Armed Forces reviewed MSG Birdsall's case. (15) The court stated that "[i]f anything is established in the area of expert testimony in child abuse cases, it is that the expert in child abuse may not act as a human lie detector for the court-martial." (16) It ruled that the expert's testimony "clearly violated [this] proscription." (17) In spite of this conclusion, the error could have been deemed forfeited because of the failure of the defense counsel to object. (18) This would have meant no relief for MSG Birdsall despite the obvious and significant error. (19) However, the court granted relief, despite the defense counsel's failure to object, because the testimony constituted "plain error" necessitating reversal. (20)

   The Birdsall case represents the epitome of tension in the appellate review process--balancing the competing interests of finality and justice. "One of the law's very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until the final judgment is known. Without finality, the criminal law is deprived of much of its deterrent effect." (21) Appellate review obviously impedes this goal, as it often delays the "final" judgment for years. However, as the opinion in Birdsall demonstrates, appellate review is necessary to ensure the correctness and fairness of the original trial proceeding. "Review ... has come to be seen as the final guarantor of the fairness of the criminal process.... Reversal on appeal is the quality control mechanism of the criminal justice system." (22)

   The friction between the goals of finality and justice is at its maximum where, as in Birdsall, a potential issue was not litigated at the trial court but is identified on appeal. Consideration of such issues undermines the certainty and stability of the criminal justice system in several ways. First, "allowing defense counsel to raise errors for the first time on appeal permits careless litigation at trial. In some instances, it even encourages the sloppy handling of issues, as when defense counsel is concerned that the trial judge might be less sympathetic to facts than the appellate court." (23) Moreover, the failure to raise objections at trial deprives the lower court, and the opposing party, of the opportunity to correct errors when corrective action would be most effective. (24) This "means that appeals, which might be unnecessary if the trial court were properly informed of the parties' contentions, will be more likely to occur." (25) To guard against these dangers, an appellate court will generally not review an issue if the defense does not object to it at trial. (26)

   On the other hand, a "rigid and undeviating" practice where appellate courts turn a blind eye to all questions that have not been previously raised would be incompatible with fundamental principles of justice. (27) A strict application of this rule may lead to an appellant finding himself with no remedy on appeal, even though "the trial below was riddled with prejudicial error from beginning to end." (28) Accordingly, the doctrine of plain error was created as an exception to the rule of forfeiture to allow the courts sufficient flexibility to balance the interests of finality and justice. (29) This principle allows courts to take notice of particularly egregious errors in extraordinary circumstances, despite the failure of the defense to raise them at the trial level. (30)

   This article will trace the history of the doctrine of plain error and its place in appellate review. It will specifically address the application of plain error in the military justice system, particularly in relation to the unique degree of appellate scrutiny a case receives in accordance with the Uniform Code of Military Justice. Additionally, the article will analyze defects in the military application of the doctrine and propose corrective action through the adoption of a Rule for Courts-Martial that defines a uniform application of the doctrine in the military justice system.

2. APPELLATE REVIEW GENERALLY

   When faced with an error by either the prosecutor or trial judge, a defense counsel has three options. First, he can make an objection or request a particular action to correct the error. Second, he can take affirmative action to waive the particular rule that confers a right or benefit upon him. Finally, he can do nothing and sit silently, allowing the trial to proceed in due course. This final choice can, of course, be the result of intentional decision or inadvertent omission. The degree of review an alleged error receives on appeal, if any at all, depends largely on the course of action taken by the defense counsel.

   If a defense counsel lodges a specific objection to a ruling by a military judge or evidence offered by a prosecutor, the error is said to be "preserved" (31) and can be reviewed on appeal. (32) In such a circumstance, the appellate court will review the record to determine whether the action or decision at trial was actually erroneous. (33) If so, the government must demonstrate that the error was harmless. (34) The standard for demonstrating harmlessness may vary depending upon the type of error being assessed. (35) For instance, a higher standard may be imposed for constitutional errors than for non-constitutional ones. (36)

   Waiver occurs when an accused, either personally or through his counsel, makes a knowing choice not to exercise his rights. (37) Thus, waiver requires an "intentional relinquishment of a known right." (38) If affirmative waiver is established, no error can be said to have occurred because the action taken by the court resulted directly from the choice of the accused. (39) Therefore, appellate courts will not review the issue unless an accused can demonstrate extraordinary circumstances. (40)

   Where an accused does not affirmatively waive a right or a rule, but instead simply does not object to its alleged violation, appellate review is also unlikely. (41) This situation, known as forfeiture, is defined as "the failure to make a timely assertion of a right." (42) Unlike waiver, forfeiture can result either from tactical decision or simple omission by the defense. (43) While failure to grant relief for such forfeited errors promotes the government's interest in obtaining finality of a conviction, it is troubling when viewed in the context of achieving a just result. As one commentator has explained:

   The significant difference between waiver and forfeiture is that a defendant can forfeit his defenses [or other rights] without ever having made a deliberate informed decision to extinguish them, and without ever having been in a position to make a cost-free decision to assert them. Unlike waiver, forfeiture occurs by operation of law without regard to the defendant's state of mind. (44) In the fast and fluid nature of a trial, even the most competent counsel can overlook an issue that, in hindsight, appears to be a glaring error, devastating to an accused's interests. (45) Because of this fact, forfeiture does not extinguish an error, in contrast to waiver. (46) The error may still exist, but because the defense relinquished an opportunity to correct it at trial, the defense must surmount a higher hurdle on appeal to obtain relief. (47) The ability of an appellate court to review an error forfeited at trial is known as the...