U.S. Supreme Court
Criminal Procedure — plain error
Regardless of whether a legal question was settled or unsettled at the time of trial, an error is “plain” within the meaning of Rule 52(b) so long as the error was plain at the time of appellate review.
Rule 52(b)’s “plain error” phrase applies at the time of review. If “plain error” covers trial court decisions that were plainly correct when made and those that were plainly incorrect when made, it should cover cases in the middle, i.e., where the law was neither clearly correct nor incorrect, but unsettled, at the time of the trial court’s decision. To hold to the contrary would lead to unjustifiably different treatment of similarly situated individuals, for there is no practical reason to treat a defendant more harshly simply because his circuit’s law was unclear at the time of trial. Even if a “time of error” rule would provide an added incentive to counsel to call a trial judge’s attention to the matter so the judge could quickly consider remedial action, such incentive has little, if any, practical importance since counsel normally has good reasons for calling a trial court’s attention to potential error, e.g., the advantage to counsel and client of having an error speedily corrected. In sum, in contrast to a “time of error” rule, a “time of review” interpretation furthers the basic principle that “an appellate court must apply the law in effect at the time it renders its decision,” Thorpe, supra, at 281; works little, if any, practical harm upon the competing administrative principle that insists that counsel call a potential error to the trial court’s attention; and is consistent with Rule 52(b)’s basic purpose of creating a fairness-based exception to the general requirement that an objection be made at trial to preserve a claim of error.
646 F. 3d 223, reversed and remanded.
Breyer, J.; Scalia, J., dissenting.