Plain error rule - clarifying plain error analysis under rule 52(b) of the Federal Rules of Criminal Procedure.

AuthorLowry, Jeffrey L.
PositionSupreme Court Review - Case Note

    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.(19) The Court held that Rule 52(b) did not apply to prisoners bringing collateral attacks against criminal convictions.(20) Although the Court did not apply Rule 52(b) in Frady, the majority did note in dicta that the Rule "grants the courts of appeals the latitude to correct particularly egregious errors on appeal regardless of a defendant's trial default."(21) The Court explained that "Rule 52(b) was intended to afford a means for the prompt redress of miscarriages of justice"(22) and noted approvingly that the courts of appeals have "recognized that the power granted to them by Rule 52(b) is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."(23)

    In United States v. Young,(24) the Court reiterated Frady's "miscarriage of justice" standard for applying Rule 52(b) and added that "[a]ny unwarranted extension of this exacting definition of plain error would skew the Rule's |careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.'"(25) The respondent in Young had appealed his convictions of mail fraud and making false statements to a government agency on the ground that the prosecutor's closing statement unfairly prejudiced him.(26) Since Young had not objected to the remarks at trial, the Court determined that the principal issue in the case was whether the prosecutor's comments constituted "plain error" that a reviewing court could correct absent timely objection.(27) The majority in Young quoted both the Atkinson and the miscarriage of justice standards in describing plain error review under Rule 52(b), indicating that the Court considered the two standards to be synonymous.(28) The Young Court emphasized that "a reviewing court cannot properly evaluate a case [for plain error under Rule 52(b)] except by viewing such a claim against the entire record."(29) Explaining that "|each case necessarily turns on its own facts,'"(30) the Court decided that in light of the facts presented in Young, the prosecutor's remarks did not "rise to the level of plain error."(31)

    The Young Court also maintained that the federal appellate courts had "consistently interpreted" the plain error doctrine to require a two-part inquiry.(32) According to the Court, the appellate courts' interpretation of Rule 52(b) required them to determine first whether the error seriously affected substantial rights and then whether the error had an unfair prejudicial impact on the jury's deliberations.(33) Only after such an analysis, the Court maintained, could appellate courts "conclude that the error undermined the fairness of the trial and contributed to a miscarriage of justice."(34) Although the Court characterized this two-part analysis favorably, it did not mandate that reviewing courts follow such an approach when applying the Rule.(35)

    In United States v. Olano, the Court for the first time set forth a framework for plain error review under Rule 52(b) and addressed the differences between the Atkinson and the miscarriage of justice standards for correcting errors under the Rule.


    In 1986, Guy W. Olano, Jr. and Raymond M. Gray were indicted on numerous federal charges for participating in an intricate scheme to defraud several savings and loan institutions.(36) Olano was the chairman of Alliance Federal Savings and Loan Association in Kenner, Louisiana, and Gray was the chairman of Home Savings and Loan Association in Seattle, Washington.(37) The jury trial of Olano, Gray, and five co-defendants began in the Western District of Washington on March 2, 1987.(38) During pretrial proceedings, the parties agreed that fourteen jurors--twelve regular jurors and two alternates--would hear the case.(39) The prosecution and the defense each reserved one peremptory challenge to be used at the end of the trial.(40) The two jurors challenged at the end of the trial were to be the alternates.(41)

    On May 26, near the end of the three-month trial, District Court Judge Barbara J. Rothstein suggested to the defendants that the two alternate jurors be allowed to remain with the regular jurors during deliberations:

    My last question, and I'd just like you to think about it, you have a day,

    let me know, it's just a suggestion and you can--if there is even one

    person who doesn't like it we won't do it, but it is a suggestion that

    other courts have followed in long cases where jurors have sat through

    a lot of testimony, and that is to let the alternates go in but not participate,

    but just to sit in on deliberations.(42)

    The next day, the court raised the issue again, and the following cryptic colloquy took place:

    THE COURT: [H]ave you given any more thought as to whether you

    want the alternates to go in and not participate, or do you want them


    MR. ROBISON [counsel for Gray]: We would ask they not.

    THE COURT: Not.(43)

    One day later, on the last day of the trial, the court again asked

    whether the defendants agreed to the court's proposal to allow the

    alternate jurors to sit in on deliberations:

    THE COURT: Well, counsel, I received your alternates. Do I understand

    that the defendants now--it's hard to keep up with you, Counsel.

    It's sort of a day by day--but that's all right. You do all agree that all

    fourteen deliberate?

    [No record of response.

    Okay. Do you want me to instruct the two alternates not to participate

    in deliberation?

    MR. KELLOGG [counsel for co-defendant Hilling]: That's what I was

    on my feet to say. It's my understanding that the conversation was the

    two alternates go back there instructed that they are not to take part in

    any fashion in the deliberations.(44)

    All three discussions concerning the alternate jurors took place outside the presence of the jury but in the presence of both Gray's counsel and Olano's counsel.(45) Gray was present at all three discussions, but Olano, who attended the first two, may not...

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