See also APPEAL -Admission of Evidence: Failure to Object at Trial

3(a).  Plain Error in Criminal Cases Generally

 
The exception to this rule of waiver is the doctrine of plain error.{footnote}FRE 103(d).{/footnote}  Even if a criminal defendant failed to make a specific, timely objection, the introduction of inadmissible evidence may be noted as error on appeal if the error was plain and it deprived the defendant of substantial rights.{footnote}FRE 103(d); Fed. R. Crim. Pro. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."); Sup. Ct. R. 34.1(a); United States v. Olano, 507 U.S. 725, 732 (1993); Silbur v. United States, 370 U.S. 717, 718 (1962).
State v. Meiers, 412 S.W. 2d 478 (Mo. 1967); Virgil v. State, 267 N.W.2d 852 (Wis. 1978) (plain error is error which "flouts fundamental concepts of justice").
Contra Wicks v. State, 606 S.W.2d 366 (Ark. 1980) (no plain error rule in Arkansas similar to federal rule).{/footnote}  

In United States v. Olano,{footnote}507 U.S. 725 (1993) (presence of alternate jurors during jury deliberations, in violation of Fed. R. Crim. Pro. 24(c)., held not to be plain error as it did not affect substantial rights).{/footnote} the United States Supreme Court clarified the plain error doctrine for federal appellate courts.  The Court held that before an appellate court may grant relief under Fed. R. Crim. Pro. 52(b) it must find that an error occurred (such as the violation of a legal rule which was not voluntarily waived),{footnote}Olano, 507 U.S. at 732-33.{/footnote} that the error was plain (in the sense of “clear” or “obvious”){footnote}Olano, 507 U.S. at 734 (“‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.'”); Peretz v. United States, 501 U.S. 928 (1991) (Scalia, J., dissenting) (plain errors are "errors that are obvious"); United States v. Young, 470 U.S. 1, 16 n.14 (1985) (equating "plain" with "readily apparent"); United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994) (en banc) ("An error must be clearly evident to be plain . . . .").{/footnote} and that it affected “susbstantial rights.”{footnote}Olano, 507 U.S. at 734.{/footnote}  The “substantial rights” prong is essentially a test of whether the error was prejudicial: did the error affect the outcome of the trial.{footnote}Olano, 507 U.S. at 734-35 (“We need not decide whether the phrase ‘affecting substantial rights’ is always synonymous with ‘prejudicial.’. . . . Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the "affecting substantial rights" prong of Rule 52(b).”){/footnote}  This is the same prejudice inquiry that is used to determine whether errors which have been preserved on appeal are harmless (5), except that the defendant bears the burden of persuasion under the plain error doctrine.{footnote}Olano, 507 U.S. at 734.{/footnote} The defendant need not prove his actual innocence.{footnote}Olano, 507 U.S. at 736.{/footnote}

Rule 52(b) is permissive, not mandatory.{footnote}Olano, 507 U.S. at 735; United States v. Tomblin, 46 F.3d 1369, 1386 (5th Cir. 1995).{/footnote}  Whether to correct the challenged error is a matter within the sound discretion of the appellate court.{footnote}Olano, 507 U.S. at 732.{/footnote} The appellate court should not exercise that discretion unless the error "seriously affects the fairness, integrity or public reputation of judicial proceedings."{footnote}Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))); United States v. Ellis, 1997 U.S. App. LEXIS 21040.{/footnote}

The doctrine only applies to inadvertent mistakes of counsel; it does not provide relief from deliberate strategic decisions to waive an objection.{footnote}United States v. Castenada, 555 F.2d 605 (7th Cir. 1977).{/footnote}  The phrase "plain error" is somewhat misleading in that the real issue in most cases is not whether the claimed error is "plain" in the sense of obvious, but whether it was grave enough to warrant reversal.{footnote}United States v. Zolicoffer, 869 F.2d 771 (3d Cir. 1989) (failure of prosecution to prove element of offense); United States v. Montemayor, 684 F.2d 1118 (5th Cir. 1982).
See also United States v. Wolf, 787 F.2d 1094 (7th Cir. 1986) (plain error is error that is likely to have affected verdict); United States v. Williams, 685 F.2d 319 (9th Cir. 1982) (plain error only where highly probable that error materially affected verdict).{/footnote}  The defendant must show that but for the erroneously admitted evidence, he would have been acquitted.{footnote}United States v. Snyder, 872 F.2d 1351 (7th Cir. 1989).
See also United States v. Dixon, 562 F.2d 1138 (9th Cir. 1977) (plain error only reversible wher "highly probable that the error materially affected the jury’s verdict").{/footnote}  Indeed, the extent to which an error is obvious can cut both ways: if the error is subtle, there is a greater chance that the waiver was inadvertent. 

Even plain errors are subject to harmless error analysis.{footnote}United States v. Wilson, 666 F.2d 1241 (9th Cir. 1982).{/footnote}  [HOW CAN THIS BE IF D WOULD HAVE BEEN ACQUITTED “BUT FOR” ERROR???]

Evidence that has been held reversible error in spite of counsel’s failure to object includes an involuntary confession,{footnote}Payne v. Arkansas, 356 U.S. 560 (1958) (never harmless error). 
See CONFESSIONS.{/footnote} submission of prejudicial evidence to the jury which was not admitted into evidence,{footnote}Government of the Virgin Islands v. Joseph, 685 F.2d 857 (3d Cir. 1982).{/footnote} failure to give a cautionary instruction regarding a coconspirator’s guilty plea,{footnote}United States v. Osborne, 532 F.Supp. 857 (W.D. Va. 1982).
See also United States v. Baez, 703 F.2d 453 (10th Cir. 1983) (plain error for judge to tell jury of codefendants’ guilty pleas).{/footnote} and improper admission of a coconspirator’s out-of-court statement.{footnote}United States v. Huber, 772 F.2d 585 (9th Cir. 1985).{/footnote}

3(b).  Plain Error in Civil Cases

  Although the federal rules do not limit the plain error doctrine to criminal cases, appellate courts disfavor its application in the civil context.{footnote}Kafka v. Truck Insurance Exchange, (7th Cir. 3/23/94) (only applicable where exceptional circumstances and to avoid miscarriage of jusitice).
Sturgis v. Lee Apparel Co., Inc., 800 S.W.2d 719 (1990) (plain error rule unavailable in Arkansas).
But see Teen-Ed, Inc. v. Kimball Int’l, Inc., 620 F.2d 399 (3d Cir. 1980); Rojas v. Richardson, 703 F.2d 186 (5th Cir. 1983).{/footnote}