08-1341 U.S. v. Marcus

Listen to this article

Criminal Procedure
Plain error

Under plain error review, it is not sufficient to grant a new trial that it is possible that the jury could have convicted the defendant based on conduct that occurred before enactment of the statute.

The Second Circuit’s plain-error standard conflicts with this Court’s interpretation of the plain-error rule. An appellate court may recognize a “plain error that affects substantial rights,” even if that error was “not brought” to the district court’s “attention.” Fed. Rule Crim. Proc. 52(b). This Court’s cases interpret this rule such that an appellate court may, in its discretion, correct an error not raised at trial only when the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The standard the Second Circuit applied in this case is inconsistent with the third and fourth of these criteria. To begin, it is irreconcilable with the criterion that the error “affec[t] the appellant’s substantial rights,” Puckett v. United States, 556 U. S. ___, ___. This condition requires the error to be prejudicial, meaning that there is a reasonable probability that the error affected the trial’s outcome, not that there is “any possibility,” however remote, that the jury could have convicted based exclusively on preenactment conduct.

538 F. 3d 97, reversed and remanded.

08-1341 U.S. v. Marcus

Breyer, J.; Stevens, J., dissenting.

Full Text