Normally, if a defendant fails to make a timely objection to a perceived error during trial, he forfeits his right to appeal the error. Federal Rule of Criminal Procedure 52(b) however, allows for an exception to this general rule. Rule 52(b) is a codification of a common law standard which allowed a court to address an error not timely objected to. This type of appellate review is known as plain error review. The original standard, which Rule 52(b) is based on came from United States v. Atkinson. The United States Supreme Court in Atkinson stated that courts, in the public interest, held discretion to correct an error which had been forfeited by a defendant when the error was obvious or it otherwise seriously affected the "fairness, integrity or public reputation of judicial proceedings." This standard was grounded in a concern for the public's faith in the integrity of the judicial system.
In the last thirty years, the United States Supreme Court has strayed from the principles embodied Atkinson and has created a different plain error standard. The current plain error review paradigm was postulated in United States v. Olano, and consists of a four-part conjunctive test focusing heavily on actual prejudice suffered by a defendant caused by the error. This test is complicated, which has led to inconsistent holdings and various dissents on the correct application of plain error review. In United States v. Resnick, the prosecution used the defendant's refusal to submit to a polygraph as substantive evidence of his guilt. Because the defense did not timely object to this, the Seventh Circuit applied plain error review. After applying the Olano test, the court concluded that there had been no plain error committed by the district court.
The confused state of the plain error doctrine led the Seventh Circuit to wrongly decide Resnick. In addition to ignoring the egregiousness of the constitutional violation, the court erroneously required that the appellant show that the error had actually affected the outcome of his trial. In making this showing of actual prejudice a dispositive factor, the court failed to account for any injury to the integrity of the judicial system the constitutional error might cause. In order to maintain the public's faith in tribunal proceedings, the doctrine must be revised to look beyond any damage an uncorrected error may cause an individual. Instead, plain error analysis must also account for injuries to the fabric of our judicial system.
Plain Error Review Is Just Plain Confusing: How the Confused State of Plain Error Review Led the Seventh Circuit to Get It Wrong,
Seventh Circuit Rev.
Available at: http://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol12/iss1/2