B. Motion for New Trial 1706

Federal Rule of Criminal Procedure 33, providing for a new trial on motion "if the interest of justice so requires," affords another avenue for direct attack on a conviction. Note that, as was true of motions for acquittal, post-verdict new trial motions are defendants' remedies.

One might expect that the same trial judge who erred one,=: is unlikely to be quick to change her mind, but it sometimes happens ,·i;e trial judge knows that it is likely that a convicted defendant will app··al, and the post-trial motion enables the trial judge to correct any errol' • >.,t an appellate court would correct. In close cases, the trial judg0 :,, S authority to grant a new trial even if an appellate court, acting oe ·,,e basis of a cold record, would not, because the trial judge is well situal0:.: to see or feel the prejudicial impact of an error that on paper doc.:; r,:>t

appear to be significant. One ground on which a motion for a new trial might be granted is that the trial judge is convinced that a verdict is against the weight of the evidence. "Against the weight of the evidence" is not the same as "insufficient evidence." The standards governing a trial judge's ruling on a motion for a new trial on "weight of the evidence" grounds are well stated by the court in United States v. Martinez, 763 F.2d 1297 (11th Cir.1985):

United States v. Martinez, 763 F. 2d 1297 - Court of Appeals, 11th Circuit 1985

sufficiency

Appellants challenge the sufficiency of the evidence to sustain their convictions. In reviewing sufficiency of evidence claims, "we must examine the record in the light most favorable to the government, and in that light determine if a reasonable juror could find the defendants guilty beyond a reasonable doubt." United States v. Corbin, 734 F.2d 643, 650 (11th Cir.1984). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

State appeal jurisdiction/DJ

t the time relevant to this case, 18 U.S.C. § 3731 specified only two categories of decisions that the government could appeal in a criminal case: (1) a "decision or order of a district court suppressing or excluding evidence or requiring the return of seized property ..." and (2) "a decision, judgment or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."^[12] The statute also provided that it "shall be liberally constructed to effectuate its purposes." The Supreme Court determined that one such purpose was "to remove all statutory barriers to Government appeals and to allow 1309 *1309 appeals whenever the Constitution would permit." Wilson, 420 U.S. at 337, 95 S.Ct. at 1019. See also United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S.Ct. 1349, 1352, 51 L.Ed.2d 642 (1977).

Despite the "liberal construction" provision of section 3731, courts had held that section 3731 did not authorize the appeal of a new trial order, since "[s]uch an order does not `[dismiss] an indictment ... as to any one or more ... counts,'" as required by the explicit language of the statute. Alberti, 568 F.2d at 621. See also Hitchmon, 602 F.2d at 692. However, courts had been willing to extend the government's section 3731 right of appeal beyond the explicit language of the statute when it came to judgments of acquittal. Courts held that section 3731 authorized a government appeal of a judgment of acquittal as long as the appeal was not barred by the Double Jeopardy Clause. Martin Linen Supply Co., 430 U.S. at 568, 97 S.Ct. at 1352; United States v. Boyd, 566 F.2d 929, 931-33 (5th Cir.1978). Cf. Fernandez-Toledo, 737 F.2d at 919 (section 3731 coverage is limited to "orders regarding pretrial discovery and suppression of evidence questions, and orders constituting a termination of the case such as dismissals of an indictment or judgments of acquittal"). Thus, even though section 3731 did not authorize the appeal of a new trial order, it may have authorized the instant appeal, which is of a judgment of acquittal, as long as this appeal is permitted by the Double Jeopardy Clause. Thus, the crucial question here is whether the Double Jeopardy Clause permits this appeal.

There is no blanket rule that the Double Jeopardy Clause bars all appeals from judgments of acquittal. For, the policy behind that clause is not to prevent government appeals, but rather to prevent multiple prosecutions. Wilson, 420 U.S. at 342-44, 95 S.Ct. at 1021-22. ..

Applying the double jeopardy test here, it would seem that double jeopardy does not bar this appeal, since reversal on appeal would not lead to another trial but to reinstatement of the original jury verdict. In civil cases, the courts routinely vacate the final judgment and reinstate the original verdict when they determine new trial motions were erroneously granted. E.g., Juneau Square Corp. v. First Wisconsin National Bank of Milwaukee, 624 F.2d 798, 806 (7th Cir.1980); Wiggs v. Courshon, 485 F.2d 1281, 1283 (5th Cir.1973), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1980). We see no reason why the result should be different in the criminal context.

New trial~ Merits

There is no reported opinion determining the appropriate standard of review of an order granting a new trial in a criminal case. We hold that an abuse of discretion standard of review is to be applied. A motion for a new trial is addressed to the sound discretion of the trial court, since Federal Rule of Criminal Procedure 33, which governs new trial motions, permits the court to grant a new trial "in the interest of justice." Further, abuse of discretion is the standard of review applied in civil cases, Juneau Square Corp., 624 F.2d at 806, and in criminal cases where denial of a new trial motion is challenged, United States v. Russo, 717 F.2d 545, 550 (11th Cir.1983).

1. Standard of review

2. Application of the standard

The district court did not specify its reasons for granting the new trial motion. However, it appears the court must have done so on the grounds that the jury verdict was contrary to the weight of the evidence and/or the government violated the discovery order by not disclosing Agent Burns' question prior to trial.^[15] We hold that to grant a new trial motion on the basis of either or both of these grounds was, under the facts of this case, an abuse of discretion.

Weight of the Evidence

Initially, we note that a motion for new trial made on the ground that the verdict is contrary to the weight of the evidence raises issues very different from a motion for judgment of acquittal notwithstanding the verdict, which is based on the sufficiency of the evidence. On a motion for judgment of acquittal, the court must view the evidence in the light most favorable to the verdict, and, under that light, determine whether the evidence is sufficient to support the verdict. Corbin, 734 F.2d at 650. Thus, on this motion, the court assumes the truth of the evidence offered by the prosecution. On a motion for a new trial based on the weight of the evidence, the court need not view the evidence in the light most favorable to the verdict. It may weigh the evidence and consider the credibility of the witnesses. United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980); United States v. Simms, 508 F.Supp. 1188, 1202 (W.D.La.1980). If the court concludes that, "despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury." Lincoln, 630 F.2d at 1319.

The decision to grant or deny a new trial motion based on the weight of the evidence is within the sound discretion of the trial court. An appellate court may reverse only if it finds the decision to be a clear abuse of that discretion. Id.; United States v. Indelicato, 611 F.2d 376, 387 (1st Cir.1979). While the district court's discretion is quite broad, there are limits to it. The court may not reweigh the evidence and set aside the verdict simply because it 1313 *1313 feels some other result would be more reasonable. Simms, 508 F.Supp. at 1202. The evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand. Indelicato, 611 F.2d at 387; United States v. Sinclair, 438 F.2d 50, 51 n. 1 (5th Cir.1971) (quoting Wright, Miller & Cooper, Federal Practice and Procedure: Criminal § 553, at 487). Motions for new trials based on weight of the evidence are not favored. Courts are to grant them sparingly and with caution, doing so only in those really "exceptional cases." Lincoln, 630 F.2d at 1319; Indelicato, 611 F.2d at 387; Simms, 508 F.Supp. at 1202.

Applying these principles, courts have granted new trial motions based on weight of the evidence only where the credibility of the government's witnesses had been impeached and the government's case had been marked by uncertainties and discrepancies. Thus, for example, in United States v. Simms, 508 F.Supp. at 1204-08, the court granted a new trial, explaining there was no direct proof of the defendant's guilt and that "[t]he government's case depends upon inferences upon inferences drawn from uncorroborated testimony that ... is subject to questions of credibility." In United States v. Hurley, 281 F.Supp. 443, 449 (D.Conn.1968), the court granted the new trial stating,

If these factual issues were joined before the jury as matters of clear-cut conflicts in testimony, the jury's decision would remain inviolate. But such was not the case. The direct testimony of Rutt and MacFarlane [the government's key witnesses] was subject to serious impeachment by prior inconsistent statements and by independent evidence.

While many circuits have taken the position that new trials may be ordered on the ground that the verdict is contrary to the weight of the evidence, our circuit apparently has never considered the matter. The government urges us to adopt the view that a new trial motion may never be granted on this ground. We need not decide the issue here, since we are convinced that the jury's verdict in this case was not contrary to the weight of the evidence, and thus that the district court should not, in any event, have granted a new trial on this ground.

The government's case against Suarez-O'Neill was not marked by uncertainties and discrepancies. It was not based on compound inferences. It was not presented through the testimony of impeached and suspect witnesses. The government's case against Suarez-O'Neill was solid and consistent.

Both sides agree that the case against Suarez-O'Neill hinged on whether the government could prove that he knew cocaine was on board the MAR AZUL. To establish this knowledge, the government relied, in part, on the undisputed fact that Suarez-O'Neill was the captain of the MAR AZUL, on board which 454 lbs. of cocaine were found. The suggestion was that it would be very unlikely for the captain, who was in charge of all the workings of the ship, to travel on board the MAR AZUL from Colombia to Miami, with crewmembers involved in the drug conspiracy, and not know that much cocaine was on board. Cf. United States v. Alfrey, 620 F.2d 551, 556 (5th Cir.), cert. denied, 449 U.S. 938, 101 S.Ct. 337, 66 L.Ed.2d 160 (1980) ("the probable length of the voyage, ... the large quantity of marijuana on board, ... and the necessarily close relationship between the captain of the trawler and his two man crew were factors upon which the jury could reasonably find guilt beyond a reasonable doubt").

To establish knowledge, the government also relied on Agent Burns' testimony about Suarez-O'Neill's statement regarding the holding tanks. Even the district court characterized the significance of the statement as "an absolute admission that he knew where the cocaine was in the ship," and as "a confession." Trial Record, vol. 6, at 637. Agent Burns never waivered in his version of his conversation with Suarez-O'Neill. Nor was he ever impeached, or his credibility in any way put into question.

1314 *1314 Of course, appellee offered evidence that contradicted the government's evidence, providing, for example, a different version of his conversation with Agent Burns. However, this was a matter of clear-cut conflict in testimony. It was not an instance where the government's case was presented by impeached witnesses, while the testimony of the defendants' witnesses was unwaivering and corroborated by independent evidence.

Under the circumstances of this case, there was no reason for the court to overturn the credibility choice made by the jury. Cf. Hurley, 281 F.Supp. at 449 ("If these factual issues were joined before the jury as matters of clear-cut conflicts in testimony, the jury's decision would remain inviolate"). This was simply not one of those "exceptional cases" in which the court had the power to interfere with the jury's factual findings. For the court to have done so here was a clear and manifest abuse of discretion.

United States v. Lama, Dist. Court, MD Florida 2021

Standards, A. New Trial

Rule 33(a) provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires."^[1] Although "motions for a new trial are disfavored," see United States v. Williams, 146 F. App'x 425, 434 (11th Cir. 2005), the "interest of justice" standard is broad, and the trial court is vested with substantial discretion in determining whether to grant such a motion, see United States v. Vicaria, 12 F.3d 195, 198 (11th Cir. 1994); United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). Thus, the court considers "whether the verdict must be set aside in the interest of justice." United States v. Green, 275 F. App'x 898, 899 (11th Cir. 2008) (internal quotation marks and citation omitted); see also Hall, 854 F.2d at 1271 (concluding that the trial "court has very broad discretion in deciding whether there has been a miscarriage of justice"); Vicaria, 12 F.3d at 198; Martinez, 763 F.2d at 1312.

When a defendant challenges the weight of the evidence in a motion for new trial, the court "need not view the evidence in the light most favorable to the verdict" and "[i]t may weigh the evidence and consider the credibility of witnesses." Martinez, 763 F.2d at 1312; see also Green, 275 F. App'x at 900. Yet, "`[t]he court may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable.'" Green, 275 F. App'x at 900 (quoting Martinez, 763 F.2d at 1312-13). Indeed, "[f]or a court to set aside the verdict, `[t]he evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Brown, 934 F.3d 1278, 1297 (11th Cir. 2019) (quoting Martinez, 763 F.2d at 1313). Motions for a new trial based on the weight of the evidence are to be granted "`sparingly and with caution,' only in `exceptional cases.'" Green, 275 F. App'x at 900 (quoting Martinez, 763 F.2d at 1313).

Judgment of Acquittal

Rule 29 provides the Court with authority, where appropriate, to enter a judgment of acquittal following a guilty verdict. See Rule 29(c)(2). A motion for judgment of acquittal under Rule 29 "is a direct challenge to the sufficiency of the evidence presented against the defendant." United States v. Aibejeris, 28 F.3d 97, 98 (11th Cir. 1994); see also United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999) ("In considering a motion for the entry of judgment of acquittal under [Rule 29(c)], a district court should apply the same standard used in reviewing the sufficiency of the evidence to sustain a conviction."). In ruling on such a motion, "a district court must `determine whether, viewing all the evidence in the light most favorable to the jury's verdict, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.'" United States v. Grigsby, 111 F.3d 806, 833 (11th Cir. 1997) (quoting United States v. O'Keefe, 825 F.2d 314, 319 (11th Cir. 1987)).

[1] As the Eleventh Circuit recognized, there are two grounds for granting a new trial under Rule 33: "interest of justice" and newly discovered evidence. See United States v. Hall, 854 F.2d 1269, 1270 (11th Cir. 1988). In this case, the only ground potentially implicated in Defendant's Motion is the "interest of justice."

Abuse of Discretion

A standard of review used by appellate courts to review decisions of lower courts. The appellate court will typically find that the decision was an abuse of discretion if the discretionary decision was made in plain error.

The abuse of discretion standard is used for when a lower court makes a discretionary ruling. On appeal, if a party challenges the ruling, then the appellate court will use the abuse of discretion standard to review the ruling.

The abuse of discretion standard is used by appellate courts to review lower court decisions in both criminal law and civil law.

In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the Supreme Court held that abuse of discretion standard is the proper standard to use when reviewing evidentiary rulings, including whether to admit or exclude expert testimony.

Abuse of Discretion: Misunderstanding the Deference Accorded Trial Court Rulings

ARTICLE- Standard of Review (State and Federal): A Primer

It would be difficult to name a significant legal precept that has been treated more cavalierly than standard of review. Some courts invoke it talismanically to authenticate the rest of their opinions. Once they state the standard, they then ignore it throughout their analysis of the issues. Other courts use standard of review to create an illusion of harmony between the appropriate result and the applicable law. If an appellate court wants to reverse a lower tribunal, it characterizes the issue as a mixed issue of law and fact, thereby allowing de novo review. If the court wants to affirm, it characterizes the issue as one of fact or of discretion. It then applies a higher (more deferential) standard to the lower tribunal's decision. Finally, some courts disregard standard of review in their analysis entirely.

Standard of review has been virtually ignored by legal scholars.¹ The phrase does not even appear in any of the major law dictionaries. Yet, as a concept, it is essential to every appellate court decision. It is to the appellate court what the burden of proof is to the trial court. Ironi cally, although no trial judge would think of sending a case to the jury without an instruction on the burden of proof, appellate judges often omit the standard of review when they discuss whether or not to over rule a trial court's determination.

The one exception to the general lack of analysis in standard of review lies in the area qf administrative law. This exception is appar ently the result of a clumsy codification of common law principles. Unfortunately, the discourse over administrative law has borne little fruit. To quote Professor Kenneth Culp Davis: "Probably more than 500 pages a year are devoted to detailed statements about scope of review of administrative action; most of that verbiage is harmless, for neither the judges nor the readers of opinions take it seriously.

The terms "standard of review" and "scope of review" are often used interchangeably. They will be used here as two separate concepts, although they are interrelated and often confused.4 Scope of review is often used in a way that includes both scope of review and standard of review as those terms are defined in this article. The two, however, should be distinguished. "Scope of review" best delineates the range of issues which are subject to appellate review in a given case. It answers the question: Can the issue be reviewed? The scope of appel late review for trial court decisions in Washington is governed by the court rules;⁵ in federal courts, it is governed by statute.⁶ "Standard of

review," by contrast, operates only after an issue has been determined to lie within the court's scope of review. Standard of review is based on and defines how much deference the lower tribunal's decision will be accorded. It answers the question: What is necessary to overturn the decision? Typically, standards of review have been derived from com mon law although they may have later been codified, as the standards contained in the Administrative Procedure Act have been.⁷

Precise definition of standard of review is virtually impossible, because each standard evolved independently. As a result, different standards measure different variables. Thus, while the burden of proof can always be defined in terms of quantum (how much evidence is necessary to establish a fact), no similar measure is common to all stan dards of review. Standards range from quantum ("substantial evi dence"), to point of view ("de novo"), to impression ("clearly erroneous" and "arbitrary or capricious").

Furthermore, the different standards look to different components of the decision-making process in their analysis. For instance, "sub stantial evidence" looks to the evidence in the lower tribunal's record in support of the finding.⁸ By contrast, "abuse of discretion" looks to the decision-maker and his or her actions or inactions.9 "De novo" looks to the appellate tribunal, describing how it can review the finding.¹⁰ Finally, "clearly erroneous" and "arbitrary or capricious" look at the overall big picture of what happened below, beyond the lower tribu nal's record.¹¹

Because each standard examines different components, most stan dards cannot accurately be characterized as higher or lower than others. Without doubt, some standards are broader than others (e.g., "clearly erroneous" is a higher-more limiting-standard than "de novo"). However, a continuum of standards cannot be constructed. Therefore, one question remains unanswered: Is a given standard exclusive and if so, does a "higher standard" encompass a "lower standard"?¹² Typi cally, courts apply a single standard to each issue to the exclusion of all other standards.

Within this context, the following will at least provide a working definition: The standard of review is the criterion by which the decision of a lower tribunal will be measured by a higher tribunal to determine its cor rectness or propriety.

One way to add understanding to this rather stark definition is to study the origin and evolution of standard of review.

Policy-deference and trial court’s expertise in th facts-Courts, however, do not initially look to policy in determining the standard of review. Instead, they have traditionally begun their analysis with characterization. Following suit, this Article does the same.

CHARACTERIZATION

Legal issues have traditionally been classified as issues of law, issues of fact, or mixed issues of law and fact. A variety of judicial results stems from the way in which an issue is characterized. The characterization of an issue can therefore be critical to an attorney.

Distinction Between Law and Fact

The debate on what constitutes an issue of fact and what consti tutes an issue of law has been going on in this country for over a cen tury.59 The distinction is commonly used to determine whether the judge or jury will decide an issue at trial.⁶⁰ It is also critical to the standard of review. Both federal and Washington courts have held that the determination of the proper standard of review hinges on whether the question presented for review is one of fact, one of law, or a hybrid of fact and law.⁶¹

One major commentator states that the difference between an issue of law and an issue of fact is only one of degree, that the relation ship between fact and law can be described as a spectrum with finding of fact shading imperceptibly into conclusion of law.⁶² Another meta-

phor might be to say the distinction is the legal "devil's pitchfork."⁶³ At each end of the spectrum, there is clarity. That is, some findings are indisputably findings of fact, while others are indisputably state ments of law. This leads to the illusion that a given issue should be definable as either one or the other. However, when the two begin to merge in what has been called "ultimate fact," "application of law to facts," or "mixed question of law and fact," applying the available defi nitions and appropriate standards becomes problematic.

In 1981, the United States Supreme Court observed that it did not yet know of any rule or principle that would unerringly distinguish a factual finding from a legal conclusion. ⁶⁴ Some guidelines can be established, however. Where courts perceive the inquiry as empiri cal-revolving around actual events, past or future-the inquiry is labeled a question of fact; where the issue is primarily policy-center ing on the values society wishes to promote-it becomes one of law.⁶⁵ A question of law has also been defined as an issue that involves the

application or interpretation of a law.⁶⁶ Of course, at some point these distinctions meet and overlap, and any attempt at definitively classify ing the issues runs aground. Still, courts have traditionally attempted to select the standard of review based on their classification of the issue (although one suspects that some courts make their decision the other way around even if they do not say so).

Washington courts have said that when a determination is made about evidence showing that something occurred or existed, it is a find ing of fact, but, when the determination is made by a process of legal reasoning from facts in evidence, it is a conclusion of law.⁶⁷ These courts have also stated that a finding of fact is an assertion that a phe nomenon has happened or is or will happen independent of or anterior to any assertion about its legal effect.⁶⁸ These courts are really saying that any legal analysis makes the finding a mixed issue of law and fact. The problem is that in classifying an issue as either one of law or a mixed question, the standard of review is usually de novo. This allows an appellate court carte blanche even though there may be reasons for deferring to the lower tribunal. When an issue falls within the blurred area of a mixed question, it might be better to fall back on policy con siderations. Parties could argue why a certain standard was appropriate

for the situation and how it should be applied in the particular case. One final note: A lower tribunal's determination of an issue as one of fact or law does not bind an appellate court.⁶⁹ That is to say, the characterization of an issue is itself an issue of law. There is no testi mony, special expertise, or other reason for deferring to a trial court's finding on the issue.

Discretionary Functions

Courts ignore the fact/law distinction in determining the standard of review for procedural and evidentiary questions. Certainly a trial judge's ruling on the admissibility of evidence cannot be characterized as a question of fact. It is probably best characterized as one of law. However, reviewing courts have not attempted to characterize such decisions as law or fact. Instead, they classify them simply as matters of discretion.⁷° Courts have not explained why the philosophical underpinnings for the standard of review on these issues differs from

APPELLATE REVIEW OF pARTICULAR DECISIONS

Review of Findings of Fact

Review of fact-finding in federal court is sometimes governed by court rule, other times by common law. Civil Rule 52(a) requires facts found by the court to be reviewed under a "clearly .erroneous" standard.71 Although the Federal Rules of Criminal Procedure have no provision similar to Rule 52(a), the Supreme Court has said that the considerations underlying that rule apply with full force in a criminal context.72 Accordingly, the "clearly erroneous" standard of review has long been applied to non-guilt findings of fact by district courts in criminal cases.⁷³ Facts found by a jury are reviewed with the common law "substantial evidence" test.⁷⁴ The sanctity of the Constitutional right to jury trial is the justification given for this enhanced deference.⁷⁵

In Washington, as a rule, all findings of fact are reviewed under the substantial evidence test. This test has been adopted through a process of gradual evolution.⁷⁶ From 1893 to 1951, there was de novo review of evidence in nonjury cases.⁷⁷ During the fifties, the Washing ton Supreme Court started asking whether the evidence preponderated against the findings.⁷⁸ Finally, the substantial evidence test was enun-

CHARACTERIZATION

Distinction Between Law and Fact

APPELLATE REVIEW OF pARTICULAR DECISIONS

Review of Findings of Fact

--------------------

[ The Substantial Evidence Rule: Texas Version ]

Teresa Ann Harris v. State of Arkansas

Motions -- directed verdict -- challenge to sufficiency. -- Directed-verdict motions are treated as challenges to sufficiency of the evidence.
Evidence -- challenge to sufficiency -- standard of review. -- When sufficiency of the evidence is challenged, the appellate court considers only evidence that supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict; substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another.

---------------

Exceptions to General Rules in Fact-Finding

Both Washington and federal courts have made exceptions to the general rules for reviewing findings of fact. In Washington, if the facts are undisputed, the reviewing court stands in the same position as the trial court and can therefore apply the de novo standard.⁸¹ The same is true for decisions based on·evidence which is exclusively documen tary.82 Because some federal circuits had similar holdings,⁸³ the U.S. Supreme Court amended the Federal Rules of Civil Procedure in 1985 to provide specifically: "Findings of fact, whether based on oral or docu mentary evidence, shall not be set aside unless clearly erroneous ... "84 Washington has also created an exception for reviewing trial court findings when constitutional rights are at issue.85 In such cases, they require an independent evaluation of the evidence (de novo review).

Federal Courts, like the Washington courts, have made an excep tion to the usual standard of review for factual questions when a "con- stitutional fact" is involved.⁸⁶ A constitutional fact is defined as a fact whose determination will decide an issue of constitutional rights.87 In such instances the appellate court applies a de novo review to the consti tutional facts (as opposed to all the facts).

There is some question as to whether de novo review extends to all constitutional questions, or just to certain ones, such as those that

involve the First Amendment.⁸⁸ The United States Supreme Court has not dealt with the issue. Washington courts have applied de novo review to defamation cases and criminal proceedings. ⁸⁹ The issue does not appear to have been raised in any other civil situations. Nor has the Washington Supreme Court indicated whether or not it would apply such exceptions to factual determinations of constitutional right under the state constitution.

Actually, any constitutional "fact" is more truly characterized as a mixed issue of law and fact which normally receives de novo review, anyway. The constitutional fact doctrine, however, does allow de novo review of jury findings as well as bench findings if a constitutional issue is involved.⁹⁰ This is not true of jury findings on mixed issues that are not of constitutional magnitude. Thus, a jury finding of actual malice in a defamation action (based on the First Amendment) is reviewed differently from a jury finding of negligence (not constitu tionally protected).

Review of Fact-Finding by Administrative Tribunals

Review of fact-findings by administrative tribunals is governed by statute: the Administrative Procedure Act.⁹¹ Administrative facts are reviewed at the federal level under the "substantial evidence" test⁹² unless some other standard of fact review is specified by statute. Under the original Washington Administrative Procedure Act, "sub stantial evidence" was also the standard of review.⁹³ However, that test was replaced in 1967 by the "clearly erroneous" test.94 In 1988, Wash ington returned to the "substantial evidence" test in reviewing admin istrative fact findings.⁹⁵

Review of Issues of Law

Judicial review of issues of law is straightforward. The standard is always de novo.⁹⁶ There are no exceptions. Courts may say that defer ence is given to an agency's interpretation of a statute.⁹⁷ In other words, deference will be given to the manner in which the agency applies the law. Even though phrased as an issue of law, such a ques tion is really one of mixed law and fact.

Review of Mixed Questions of Law and Fact

Mixed questions of law and fact, or application issues, involve the comparison or bringing together of the correct law and the correct facts with a view to determining the legal consequences. ⁹⁸

Federal Review of Mixed Questions

There are two standards of review for mixed questions of law and fact at the federal level. The Supreme Court has acknowledged that while it usually reviews mixed questions independently, its precedents are not entirely consistent and there is support in its decisions for "clearly erroneous" review of some mixed questions.⁹⁹ The Ninth Cir cuit has elaborated on this by stating that the appropriate standard should be determined by reference to the sound principles that underlie appellate review.¹⁰⁰ That court has also said that the appropriate stan dard of review turns on whether factual matters or legal matters predominate.¹⁰¹ If an inquiry is essentially factual, or it properly relies on the District Court's discretion, then the Court of Appeals gives def- erence to the decision of the District Court.¹⁰² Otherwise the Court of Appeals conducts de novo review.¹⁰³ Concerns for judicial administra tion will generally lead an appellate court to justify de nova review.¹⁰⁴ Although the test calls for looking to the policy behind review for determining the amount of deference, the test itself is either/or. That is, review will either be "clearly erroneous" or de novo even though a policy analysis might dictate an amount of deference somewhere in between.

Washington State Review of Mixed Questions

The Washington Supreme Court has said that it is not the prov ince of the reviewing court to try the facts de novo when presented with mixed questions of law and fact that are on appeal from a judgment of a superior court, administrative tribunal, or administrative judge.¹⁰⁵ Yet the court's stated standard for mixed questions of law and fact is de novo.¹⁰⁶ The solution to this apparent paradox is in bifurcation. What is reviewed de novo in a mixed question is the meaning of the law and how it applies to facts as determined by the trier of fact; the court does not reweigh evidence of credibility or demeanor.¹⁰⁷ In other words, historical facts receive deference but the statement of the law and the application of that law to the historical facts (to determine ultimate facts) is reviewed de novo. This proposition, however, does not hold true when an appellate court reviews a jury decision. To allow de novo review would totally eviscerate the right to a jury trial.

Review of Jury Findings

A major problem in reviewing jury decisions is that juries do not ordinarily make specific findings of fact. While a judge is required to make written findings of fact and conclusions of law,¹⁰⁸ juries typically make only legal conclusions. In a criminal case, the jury usually just checks off on a form whether the defendant was guilty or not guilty. In a civil case, it determines whether, for example, the defendant was neg ligent and, if so, how much he or she should pay in damages. A review-

ing court does not know what evidence the jurors found credible. The court cannot know what historical facts the jury found and cannot determine whether or not the jury erroneously applied the law to these facts. If the law was stated correctly in the jury instructions, then, the court's power to review is virtually nonexistent even if it is character ized as de novo. Thus, courts typically review jury findings under the "substantial evidence" standard.109

Courts might find it easier to conduct meaningful review if attor neys utilized special verdict forms.110 An attorney could ask the jury to determine whether or not the defendant committed a specific act or knew a particular fact. These historical facts would be given the great deference due to jury fact-finding. The jury's legal conclusion, how ever, that such an act or knowledge constituted guilt or negligence could be reviewed less deferentially without violating the sanctity of the right to a jury trial.

The way courts analyze standard of review for mixed questions is particularly ripe for change. As seen above, courts have made conflict ing statements in trying to define a consistent standard for mixed ques tions. It would be more practical for them to acknowledge that different mixed questions should be treated differently. Instead of try ing to force questions into rigid categories, a court should turn to policy analysis.

Mixed questions exist on a continuum; therefore, rigid application of standards is inappropriate. Courts should analyze the reasons for giving deference in each particular case and review the decision accord ingly. This may, in fact, be what some courts are doing, but they do not acknowledge the process. It would be better if they did.

Review of Procedural/ Evidentiary Qlestions

For certain questions, courts totally ignore the fact/law distinction in determining the appropriate standard of review. These are issues of trial procedure-including questions about courtroom conduct and admissibility of evidence. The reason for deferring to lower courts' views of these questions is largely one of judicial economy. A judge may make hundreds of determinations in a single case before and dur ing the course of a trial. To deter parties from appealing every adverse decision, statutes and court rules have given judges wide discretion to make everyday types of decisions.111 Therefore the standard of review for these questions is "abuse of discretion." It will be discussed later in this Article.

The evolution of "abuse of discretion" exemplifies the haphazard manner in which some standards of review have developed. Because early writs for judicial review encompassed discretionary matters, a trial court's decision on such matters was considered final. In 1892, Justice Brown stated: "The general principle is too well settled to admit of doubt that where action of an inferior tribunal is discretionary its deci sion is final."112

Once the rigidity of the procedures for review by writ relaxed, however, the rationale for not reviewing such matters no longer existed. The key stroke appears to have been made in 1892. In the same term that Earnshaw said the trial court's decision was final, the Supreme Court also stated: "The question ... is ordinarily addressed to the sound discretion of the trial court, and in the present case no abuse of that discretion is shown."113

Three years later, the Court said that the proposition that a matter of discretion was not subject to review, "unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question."114 Thus, in less than five years, the stan dard for reviewing discretionary decisions was changed, a new standard was created, and nobody even seemed to notice.

THE STANDARDS

Abuse of Discretion

Conduct of court proceedings is generally left to the trial judge's discretion and is therefore reviewed under the "abuse of discretion" standard of review.¹⁴⁶ Primarily, discretion appears as the standard for procedural rather than substantive rules.¹⁴⁷ It governs rulings on most motions,¹⁴⁸ objections, admissibility of evidence, criminal sentenc ing,¹⁴⁹ and general conduct issues such as findings of contempt.¹⁵⁰ "Abuse of discretion" is usually the standard of review if phrases like "the court may" or "for good cause" are involved.¹⁵¹ However, this is not always true.¹⁵²

The "abuse of discretion" standard is appropriate when (1) con cerns of judicial economy dictate that the trial court be responsible for the decision, or (2) the trial judge is in a better position to make the decision because he or she can observe the parties.¹⁵³ In an ongoing trial, many factors interact and accumulate. For certain issues, interac tion among the entire panoply of factors is essential background for a decision. This interaction cannot be entirely reflected in the record. Because the trial judge is able to observe all the happenings at a trial first hand, his or her decisions about such issues should be accorded substantial deference. Logically, the less the need for "having been there," the less deference should be accorded.

Judge Friendly of the Second Circuit argues that there is not just a single static "abuse of discretion" standard.¹⁵⁴ The trial judge's dis cretion varies with the function. It may be more or less limited by statute and/or court rule. Friendly says: "An appellate court must carefully scrutinize the nature of the trial court's determination and decide whether that court's superior opportunities of observation or other reasons of policy require greater deference than would be accorded to its formulations of law or its application of law to the facts. In cases within the former categories, 'abuse of discretion' should be given a broad reading, in others a reading which scarcely differs from the definition of error."¹⁵⁵ The standard does not give nearly so com plete an immunity bath to the trial court's rulings as counsel for appel lees would have the reviewing court believe.¹⁵⁶

"Abuse of discretion" has been defined as what happens when a court's decision is "manifestly unreasonable, or exercised on untenable , or for untenable reasons."157 An exercise of discretion by a trial court may be erroneous without being illegal.158 Washington courts have stated that "discretion is abused only where it can be said no reasonable man would take the view adopted by the trial court."159 Such a statement is at odds with Friendly's continuum analysis, partic ularly in cases where the standard would "scarcely differ from the defi nition of error."160 Washington does acknowledge a range in discretionary functions, however. For example, whether or not the trial was by jury is often one factor used to determine the amount of defer ence that should be given.161 Washington courts have been extremely reluctant to find abuse of discretion. One of the few times a trial court was found to have abused its discretion by excluding evidence, the court of appeals said that the trial court could not deny a party the opportunity to present a crucial link in his proof.162 In 1986, Justice Goodloe noted that only once163 has a criminal sentence been ruled an abuse of discretion.164 For some motions, the trial court is required to give definite find ings of law and facts in its order.165 Not giving such reasons would in itself be grounds for an appellate court to find the decision errone ous.166 However, for most motions at trial, no such requirement exists. The procedure would be too time-consuming. Therefore, a reviewing court often has an inadequate record with which to examine the trial judge's decision.

Professor Rosenberg calls for a trial judge relying on discretionary power to place on the record the circumstances and factors that were crucial to his or her determination.167 It is ironic, Rosenberg points out, that if the court fails to do this, its chances of being affirmed are better than if the record is spelled out.168 Based on the number of dis- cretionary decisions a judge makes in each case, placing everything in the record could overencumber an already slow judicial process. A bet ter approach might be to let trial attorneys ask the court to place cir cumstances and factors in the record in certain instances. This would limit additional recordmaking to only those discretionary decisions that are most at issue.

Because "abuse of discretion" is usually the standard for proce dural issues, the typical remedy for finding an abuse is to reverse and remand (unless the error is found to be harmless). This is done because the reviewing court would have no way of knowing how the trial court would have decided if the procedure had been different.

De Novo

The United States Supreme Court has said that de novo review occurs when a "reviewing court makes an original appraisal of all the evidence to decide whether or not it believes [the conclusions of the trial court]."¹⁶⁹ De novo review of the lower tribunal's record should be distinguished from a trial de novo. The latter means a completely new trial at which witnesses are heard and new evidence is taken. The trial de novo is still used to review some determinations by agencies and courts that are not of record.

The de novo standard of review applies to issues of law, to motions for summary judgment, and, at times, to mixed questions of law and fact.¹⁷⁰ Washington courts have inverted the language at times, and made statements like "the correct standard on review is error of law."¹⁷¹ Correctly speaking, "error of law" is not a standard. It is a classification of an issue. The standard is properly called de novo. This is another example of the courts' imprecision in dealing with the con- cept of standard of review.

The de novo standard is applied when the appellate court is in as good a position as the trial court to judge the evidence. Because of this, if all the relevant evidence is in documentary or deposition form, the appellate court should be able to substitute its judgment for that of the trial court about facts as well as application.¹⁷² ·Appellate courts can do this in Washington. Some federal circuits followed this approach until Civil Rule 52(a) was adopted making "clearly erroneous" the standard

for all federal findings of fact, even if such findings are based solely on documentary evidence.

Confusion arises because appellate courts reviewing cases de novo sometimes speak of giving deference to lower tribunal's decisions even though no deference is necessary.¹⁷³ Giving substantial weight to the lower court's decision is not in accord with strict de novo review. Giv ing deference to the lower tribunal and reviewing de novo are, in fact, contradictory.

Clearly Erroneous

The "clearly erroneous" standard is generally applied to findings of fact. It recognizes the trial court's role as primary fact-finder and prevents needless review of fact-findings on appeal.¹⁷⁴ The Federal Rules of Civil Procedure state that findings of fact shall not be set aside unless they are "clearly erroneous."¹⁷⁵ By contrast, Washington's Court Rules do not announce a standard of review for factual findings; and, facts found by trial courts are reviewed under the "substantial evi dence" standard.¹⁷⁶

According to the United States Supreme Court, a finding is "clearly erroneous" when the reviewing court, in considering the entire body of evidence, is left with the definite and firm conviction that a mistake has been committed, even though there is evidence to support the lower court's finding.¹⁷⁷ Washington courts have said that under the "clearly erroneous" test, the reviewing court may conduct a broader, more intensive review than under the "substantial evidence" test.¹⁷⁸ Theoretically, an appellate court could say: "I agree that area sonable person could make such a finding, but I think it clearly wrong."¹⁷⁹ The "clearly erroneous" standard is applied to the record as a whole, rather than to the evidence of one party or the other.¹⁸⁰

Applying the "clearly erroneous" standard to findings of fact in purely documentary cases is an excellent illustration of the illogic of

rigidly applying standards rather than looking to the policies behind them. Obviously, the appellate court is in as good of a position to eval uate the facts as the trial court in such instances. However, one United States Supreme Court opinion can be interpreted as implying that the "clearly erroneous" standard might be applied differently to different types of cases.¹⁸¹ After stating that the standard applies to non-jury findings of fact whether based on witness credibility, on physical and documentary evidence, or on inferences from other facts, the Court said: "When findings are based on determinations regarding the credi bility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the varia tions in demeanor and tone of voice that bear so heavily on the lis tener's understanding of and belief in what was said."¹⁸² Giving the trial court "greater deference" makes for a more limited review of the facts even though the same "clearly erroneous" standard was used. The Bessemer City court also said that when a finding is based on a decision to credit the testimony given by one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally incon sistent, can virtually never be "clearly erroneous."183

One commentator has gone so far as to say that "clearly errone ous" has no intrinsic meaning: "It is elastic, capacious, malleable, and above all variable. Because it means nothing, it can mean anything and everything that it ought to mean. It cannot be defined, unless the defi nition might enumerate a nearly infinite number of shadings along the spectrum of working review standards."¹⁸⁴ This adaptability, he claims, is desirable.¹⁸⁵ It allows appellate courts the latitude to adapt the measure of review to the shifting needs of different cases, different laws, and different times. Factors to consider in the stringency of review are the relative capacities of lower and higher tribunals, the need for uniformity among cases, the perceived importance of the dispute, and the nature of the legal rules involved. This analysis might be extended to other, if not all, standards.

Examples of Washington cases in which fact-finding was judged "clearly erroneous" are Swift v. Island County¹⁸⁶ and Hitchcock v.

Department of Retirement Systems.¹⁸⁷ In both of these cases, additional considerations beyond the findings of fact themselves helped the courts reach their decisions. In Swift, the court decided that the public policy behind SEPA added additional weight to appellant's factual argu ments.¹⁸⁸ In Hitchcock, the court found that the legislative intent of liberal construction favored the appellant/beneficiaries.¹⁸⁹ As these cases illustrate, public policy and/or presumptions favoring the appeal ing parties may provide the extra quantum necessary for a finding of "clearly erroneous."

Appellate courts often avoid the constraints imposed upon them by the "clearly erroneous" standard by finding the issue under consid eration something other than one of pure fact.¹⁹⁰

Arbitrary or Capricious

Despite the fact that most courts and commentators use the phrase "arbitrary and capricious," the statutory standard they apply is "arbi trary or capricious."¹⁹¹ "Arbitrary or capricious" is one of the stan dards used to review administrative decisions. "Arbitrary or capricious" first became a recognized standard for judicial review of administrative action when Congress passed the Administrative Proce dure Act in 1946.¹⁹² The phrase is included in the Administrative Pro cedure Acts of both the federal government¹⁹³ and Washington.¹⁹⁴ The federal APA designates the "arbitrary or capricious" standard for judicial review of informal agency actions and the "substantial evi-

dence" standard, which is theoretically more rigorous, for review of for mal, record-producing agency actions.¹⁹⁵

Washington courts have said that "arbitrary or capricious" means "willful and unreasoning action, action without consideration and in disregard of the facts and circumstances of the case."¹⁹⁶ Action is not "arbitrary or capricious," even if an erroneous conclusion was reached, when there is room for two opinions and an agency has acted honestly and upon due consideration of the facts.

In Citizens to Preserve Overton Park v. Volpe,¹⁹⁷ the United States Supreme Court said: "To make this finding [arbitrary or capricious] the court must consider whether the decision was based on a considera tion of the relevant factors and whether there has been a clear error of judgment."¹⁹⁸ This passage gave birth to the "clear error of judgment" language which has since been used by courts as a portion of the "arbi trary or capricious" standard. Some commentators and courts have even treated it as a standard of review itself.¹⁹⁹

The U.S. Supreme Court has also delineated certain circumstances that would make an agency ruling "arbitrary or capricious." Normally,

.an agency rule will be "arbitrary or capricious" if the agency has relied on factors that Congress has not intended it to consider, has failed to consider an important aspect of the problem, or has offered an explana tion for its decision that either runs counter to the evidence before the agency, or is so implausible that it can not be ascribed to a difference in view or the product of agency expertise.²⁰⁰

In reviewing an administrative decision, the Court of Appeals for the D.C. Circuit announced that the "arbitrary or capricious" standard may be applied differently to different issues in the same case.²⁰¹ The court stated that the scope of review of an agency's procedure and the scope of review of the agency's discretion or policy are both governed by the "arbitrary or capricious" standard. However, the court stated that the scope of the judicial inquiry differs considerably, because courts are experts on many problems of procedure while agencies may be experts on many problems of discretion or policy within their areas of specialization.²⁰² "In short, the concept of arbitrary and capricious

review defies generalized application and demands, instead, close atten tion to the nature of the particular problem faced by the agency."²⁰³ Thus, another court wisely emphasizes the flexibility of yet another standard.

The difference between the "clearly erroneous" standard and the "arbitrary or capricious" standard was enunciated by the Washington Supreme Court in Norway Hill Preservation & Protection Ass'n. v. King County Council.²⁰⁴ The court said:

The "clearly erroneous" standard provides a broader review than the "arbitrary or capricious" standard because it mandates a review of the entire record and all the evidence rather than just a search for substantial evidence to support the administrative finding or deci sion. Judicial review under the "clearly erroneous" standard set out in RCW 34.04.130(6)(e) also requires consideration of the "public policy contained in the act of the legislature authorizing the deci sion." Consequently, that public policy is "a part of the standard of review."²⁰⁵

Substantial Evidence

In Washington, the "substantial evidence" test is used to decide whether or not to uphold a trial court's findings of fact.²⁰⁶ In federal courts, "substantial evidence" is used only in reviewing factual deter minations by a jury.²⁰⁷ It is also the general test for reviewing adminis trative decisions at the federal level.²⁰⁸ Under the federal APA, the "substantial evidence" standard applies to review of formal, record producing agency actions but not to informal rulemaking.²⁰⁹ Congress has deviated from the APA model in a number of statutes, however, by· mandating the use of the "substantial evidence" standard for review of informal agency actions.²¹⁰ As a result of this additional application of the standard, at least some courts and commentators have suggested

that the "arbitrary or capricious" and "substantial evidence" standards have converged at the federal administrative level.²¹¹

"Substantial evidence" has been interpreted as evidence in suffi cient quantum to persuade a fair-minded person of the truth of the declared premise.212 When the evidence conflicts, a reviewing court must determine only whether or not the evidence most favorable to the prevailing party supports the challenged findings.²¹³ An appellate court will not substitute its judgment for that of the trial court, even though it might have resolved the factual dispute differently.²¹⁴ Courts rarely find that there is not "substantial evidence" to support a decision.²¹⁵

The United States Supreme Court says:

Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the con clusion sought to be drawn from it is one of fact for the jury.²¹⁶

"Substantial evidence" has also been interpreted to mean that the deci sion had "warrant in the record" and "a reasonable basis in law."²¹⁷ An appellate court cannot set aside a finding or verdict merely because it would have reached a different conclusion itself.²¹⁸

The "substantial evidence" standard will vary depending upon the quantum of proof required for the point at issue.²¹⁹ Evidence that is "substantial" enough to support a "preponderance of evidence" burden

of proof may not support a "clear, cogent, and convincing" burden.²²⁰ Although some commentators contend that such heightened analysis does not extend to review of criminal cases,²²¹ some. courts do give more scrutiny to fact-findings in such cases.²²² Opinions give no indi cation of any difference in the meaning of "substantial evidence" as applied by appellate courts than as applied by trial courts (as in a motion for a judgment nonwithstanding verdict).²²³

As previously stated, "substantial evidence" is one of the stan dards for reviewing federal administrative agency actions.²²⁴ The fed eral standard differs from the state standard, however, because the statute dictates that it be applied to the record as a whole.²²⁵ Prior to passage of the federal APA, courts reviewed only the evidence that sup ported the agency action.²²⁶ To rectify this one-sided scrutiny, Con gress required that courts consider the "whole record" when reviewing agency action.²²⁷ Even though some state decisions use the "record as a whole" language, ²²⁸ the rule at common law and the rule usually stated today requires "substantial evidence" viewed in the light most favorable to the prevailing party.²²⁹ Courts have interpreted this to

mean that only the evidence favoring the prevailing party's case need be looked at in such determination.230

Justice Scalia (while a member of the D.C. Circuit) distinguished the "substantial evidence" standard from the "arbitrary or capricious"

standard by considering the circumstances where the standards apply.231 He said that the "arbitrary or capricious" standard applies to

whatever the agency had before it when it acted, regardless of whether the information was shown to or known by the parties in the proceed ing.232 The "substantial evidence" standard, by contrast, applies only to a confined body of evidence (within the record of closed-record pro ceedings).233 Thus, the "arbitrary or capricious" standard operates on a broader base. Another possible distinction which can be made is that the "substantial evidence" standard applies to factual determinations while "arbitrary or capricious" goes to the entire process of the admin istrative action (including, but not limited to, factual determinations). One problem that has arisen in applying the "substantial evi dence" and "arbitrary or capricious" standards illustrates the problems inherent in applying any standard of review. Crucial to any application is a delineation of exactly what the standard is being applied to. "The record considered as a whole" need not be elaborated. It includes all testimony and evidence in the lower tribunal's record. However, problems arise when language such as "in a light most favorable to [one of the parties]" is used. Does this language mean to look at the entire record and make all reasonable inferences in favor of the party? Or does it mean to look only at the parts of the record that support that party, ignoring entirely any contradictory evidence or testimony?

Courts have interpreted the same phrase in both of these ways.234 For

other standards, like "clearly erroneous," the appellate court looks beyond the record to considerations such as legislative policy.

Other Standards

In addition to the preceding "major" standards of review, the courts have created other standards for certain types of cases or issues. Examples include the standards developed for federal equal protection

and state privileges and immunities review and the standard for review ing damage awards in Washington.

There are essentially three standards of review applied by federal courts to equal protection cases. They are the two traditional stan dards: "strict scrutiny" and "rational basis"; and a third intermediate test: "substantial relationship."

"Strict scrutiny" is one of the tests available under a constitutional equal-protection analysis.²³⁵ It is used if a classification attacked as discriminatory under the equal protection clause involves either a "sus pect class" or a "fundamental right" explicitly or implicitly guaranteed by the Constitution.²³⁶ When "strict scrutiny" is involved, the classifi cation will be upheld only if the state can justify it by showing a com pelling state interest.²³⁷

The "rational basis" test is another standard of review for equal protection. It applies to equal protection under the federal Constitu tion and privileges and immunities under the state constitution. ²³⁸ The two requirements of the test are (1) a classification must apply alike to all members within the designated class, and (2) reasonable grounds must exist for making a distinction between those falling within the class and those falling outside of it.²³⁹

There is also at least one intermediate equal-protection test that falls somewhere between the other two.²⁴⁰ It has been formally adopted for gender and illegitimacy cases. Under this standard, the classification must have a "substantial relationship" to an important governmental interest.²⁴¹ The standards for equal protection and sub stantive due process have been exhaustively treated elsewhere,²⁴² how ever, and will not be discussed further in this Article.

The same approach to standard of review has been used by Wash ington courts in construing the state Constitution's privileges and

immunities clause,243 although the potential for a different analysis has been hinted at by Justice Utter.244

These standards differ from the standards previously discussed in that they are applied to action taken by administrative or state entities rather than to decisions rendered by the courts. This distinction makes them difficult to compare with other standards.

Another unique standard has been used to review damage awards in Washington. Damages can be reduced or the award vacated if they are "unmistakably ... the result of passion or prejudice."245 Unfortu nately, this entirely new standard is not the only one for reviewing damages. Absent a showing of passion or prejudice, appellate courts still may review the adequacy or inadequacy of a damage award. Although stating this proposition in Malstrom v. Kalland,²⁴⁶ the Wash ington Supreme Court failed to articulate a standard for such review (the court did manage to decide the case even without a standard, how ever). Almost ten years later, Division Three of the Court of Appeals announced a standard for review of damages absent a showing of pas sion or prejudice.247 The test is whether the verdict "shocks the con science, sense of justice and sound judgment of the appellate court."248 Thecourt cited no authority for this standard which, ignoring any fact/ law classification, appears unrelated to any other standard of review. A still later Court of Appeals decision states: "It is well established that an appellate court will not disturb a jury award supported by 'substan tial evidence'."249 The Supreme Court has combined the standards, announcing that Washington courts will not disturb an award of dam ages made by a jury unless it (1) is outside the range of "substantial evidence" in the record, (2) shocks the conscience, or (3) appears to have been arrived at as the result of passion or prejudice.250

The issue of damage awards illustrates Washington's inability to come to grips with standard of review. California fits damage awards

C. Newly Discovered Evidence Claims 1707

Requirements for a Newly Discovered Evidence Claim 1707

A defendant must meet a four prong test before a court will grant him a retrial based on any newly discovered evidence. As stated in United States v. Lenz, 577 F.3d 377 (1st Cir.2009), the defendant must establish the following:

the evidence was unknown or unavailable at the time of the trial;
the evidence could not have been discovered earlier with due diligence;

iii. the evidence is material and not merely cumulative or impeaching; and

the evidence would probably result in an acquittal upon retrial.

In Lenz, the court concluded that a witness's newfound willingness to corroborate the defendant's story was not newly discovered evidence: "Whether or not a witness will testify truthfully is simply not 'evidence' that can be used as a basis to invoke Rule 33 of the Federal Rules of Criminal Procedure." See also United States v. Gonzalez, 933 F.2d 417 (7th Cir.1991) (defendants were not entitled to a new trial on the basis of newly discovered evidence where the evidence would merely impeach a government witness's testimony that he had never had anything to do with cocaine, and evidence of the defendants' guilt was overwhelming).

Newly Discovered vs. Newly Available 1708

There is a distinction between newly discovered and newly available evidence. Evidence is not "new" merely because it has been generated after the conviction. For example, in Harris v. Vasquez, 913 F.2d 606 (9th Cir.199O), a death penalty case, the court concluded that the defendant's new psychiatric reports did not justify another penalty hearing. Bec:ouse defense counsel possessed evidence of the defendant's brain damage at the original hearing, and no new psychiatric techniques or theories w01·e alleged to have arisen in the interim, the court concluded that the new reports were not new evidence but merely new opinions from ;; ,w psychiatrists.

New Forensic Techniques: District Attorney's Office v.Osborne 1708

District Attorney's Office v. Osborne, 557 US 52 - Supreme Court 2009

The parties dispute whether Osborne has invoked the proper federal statute in bringing his claim. He sued under the federal civil rights statute, 42 U.S.C. § 1983, which gives a cause of action to those who challenge a State's "deprivation of any rights ... secured by the Constitution." The State insists that Osborne's claim must be brought under 28 U.S.C. § 2254, which allows a prisoner to seek "a writ of habeas corpus ... on the ground that he is in custody in violation of the Constitution."

While Osborne's claim falls within the literal terms of § 1983, we have also recognized that § 1983 must be read in harmony with the habeas statute. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Heck, 512 U.S., at 487, 114 S.Ct. 2364. "Stripped to its essence," the State says, "Osborne's § 1983 action is nothing more than a request for evidence to support a hypothetical claim that he is actually innocent.... [T]his hypothetical claim sounds at the core of habeas corpus." Brief for Petitioners 19.

Osborne responds that his claim does not sound in habeas at all. Although invalidating his conviction is of course his ultimate goal, giving him the evidence he seeks "would not necessarily imply the invalidity of [his] confinement." Brief for Respondent 21. If he prevails, he would receive only access to the DNA, and even if DNA testing exonerates him, his conviction is not automatically invalidated. He must bring an entirely separate suit or a petition for clemency to invalidate his conviction. If he were proved innocent, the State might also release him on its own initiative, avoiding any need to pursue habeas at all.

Osborne also invokes our recent decision in Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). There, we held that prisoners who sought new hearings for parole eligibility and suitability need not proceed in habeas. We acknowledged that the two plaintiffs "hope[d]" their suits would "help bring about earlier release," id., at 78, 125 S.Ct. 1242, but concluded that the § 1983 suit would not accomplish that without further proceedings. "Because neither prisoner's claim would necessarily spell speedier release, neither l[ay] at the core of habeas corpus." Id., at 82, 125 S.Ct. 1242 (internal quotation marks omitted). Every Court of Appeals to consider the question since Dotson has decided that because access to DNA evidence similarly does not "necessarily spell speedier release," ibid., it can be sought under § 1983. See 423 F.3d, at 1055-1056; Savory v. Lyons, 469 F.3d 667, 672 (C.A.7 2006); McKithen v. Brown, 481 F.3d 89, 103, and n. 15 (C.A.2 2007). On the other hand, the State argues that Dotson is distinguishable because the challenged procedures in that 2319 *2319 case did not affect the ultimate "exercise of discretion by the parole board." Brief for Petitioners 32. It also maintains that Dotson does not set forth "the exclusive test for whether a prisoner may proceed under § 1983." Brief for Petitioners 32.

While we granted certiorari on this question, our resolution of Osborne's claims does not require us to resolve this difficult issue. Accordingly, we will assume without deciding that the Court of Appeals was correct that Heck does not bar Osborne's § 1983 claim. Even under this assumption, it was wrong to find a due process violation.

…

Osborne does, however, have a liberty interest in demonstrating his innocence with new evidence under state law. As explained, Alaska law provides that those who use "newly discovered evidence" to "establis[h] by clear and convincing evidence that [they are] innocent" may obtain "vacation of [their] conviction or sentence in the interest of justice." Alaska Stat. §§ 12.72.020(b)(2), 12.72.010(4). This "state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right." Dumschat, supra, at 463, 101 S.Ct. 2460; see also Wolff v. McDonnell, 418 U.S. 539, 556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

The Court of Appeals went too far, however, in concluding that the Due Process Clause requires that certain familiar preconviction trial rights be extended to protect Osborne's postconviction liberty interest. After identifying Osborne's possible liberty interests, the court concluded that the State had an obligation to comply with the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In that case, we held that due process requires a prosecutor to disclose material exculpatory evidence to the defendant before trial. The Court of Appeals acknowledged that nothing in our precedents suggested that this disclosure obligation 2320 *2320 continued after the defendant was convicted and the case was closed, 521 F.3d, at 1128, but it relied on prior Ninth Circuit precedent applying "Brady as a post-conviction right," id., at 1128-1129 (citing Thomas v. Goldsmith, 979 F.2d 746, 749-750 (C.A.9 1992)). Osborne does not claim that Brady controls this case, Brief for Respondent 39-40, and with good reason…

nstead, the question is whether consideration of Osborne's claim within the framework of the State's procedures for postconviction relief "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," or "transgresses any recognized principle of fundamental fairness in operation." Medina v. California, 505 U.S. 437, 446, 448, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (internal quotation marks omitted); see Herrera, supra, at 407-408, 113 S.Ct. 853 (applying Medina to postconviction relief for actual innocence); Finley, supra, at 556, 107 S.Ct. 1990 (postconviction relief procedures are constitutional if they "compor[t] with fundamental fairness"). Federal courts may upset a State's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.

Dissent

Although a valid criminal conviction justifies punitive detention, it does not entirely eliminate the liberty interests of convicted persons. For while a prisoner's "rights may be diminished by the needs and exigencies of the institutional environment[,]... [t]here is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Shaw v. Murphy, 532 U.S. 223, 228-229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) ("[I]ncarceration does not divest prisoners of all constitutional protections"). Our cases have recognized protected interests in a variety of postconviction contexts, extending substantive constitutional protections to state prisoners on the premise that the Due Process Clause of the Fourteenth Amendment requires States to respect certain fundamental liberties in the postconviction context. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (right to free speech); Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (right to marry); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam) (right to 2335 *2335 free exercise of religion); Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam) (right to be free of racial discrimination); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (right to petition government for redress of grievances). It is therefore far too late in the day to question the basic proposition that convicted persons such as Osborne retain a constitutionally protected measure of interest in liberty, including the fundamental liberty of freedom from physical restraint…

Insofar as it is process Osborne seeks, he is surely entitled to less than "the full panoply of rights," that would be due a criminal defendant prior to conviction, see Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). That does not mean, however, that our pretrial due process cases have no relevance in the postconviction context. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we held that the State violates due process when it suppresses "evidence favorable to an accused" that is "material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Although Brady does not directly provide for a postconviction right to such evidence, the concerns with fundamental fairness that motivated our decision in that case are equally present when convicted persons such as Osborne seek access to dispositive DNA evidence following conviction…

If the right Osborne seeks to vindicate is framed as purely substantive, the proper result is no less clear. "The touchstone of due process is protection of the individual against arbitrary action of government," Meachum, 427 U.S., at 226, 96 S.Ct. 2532 (internal quotation marks omitted); Wolff, 418 U.S., at 558, 94 S.Ct. 2963; County of Sacramento v. Lewis, 523 U.S. 833, 845-846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). When government action is so lacking in justification that it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense," Collins v. Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), it violates the Due Process Clause. In my view, the State's refusal to provide Osborne with access to evidence for DNA testing qualifies as arbitrary.

Souter:

It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone, id., at 542, 544, 81 S.Ct. 1752, and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition, see Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (personal privacy); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (sexual intimacy), see also Washington v. Glucksberg, 521 U.S. 702, 752, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (SOUTER, J., concurring in judgment), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), with Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (joint opinion of O'Connor, KENNEDY and SOUTER, JJ.).

Second Thoughts of Witnesses and Jurors 1711

Time Limits 1711

!·,:!e Advisory Committee on Criminal Rules had suggested that newiy discovered evidence motions could be made "at any time before or aftei. ;_':.nal judgment," but the Federal Rule (Rule 33(b)(l)) imposes a thre•:'· 'ear time limit. See Herrera v. Collins, 506 U.S. 390 (1993), uphoi-.:ing, against a constitutional attack, a Texas procedure that req :.E<:!S a new trial motion based on newly discovered evidence to be mad:. within 30 days of judgment.

D. The Effect of an Error on the Verdict 1711

1. Harmless Error 1711

Chapman v. California 1712

Chapman v. California, 386 US 18 - Supreme Court 1967

"Where there is a violation of the rule of Griffin v. California, 380 U. S. 609, (1) can the error be held to be harmless, and (2) if so, was the error harmless in this case?" 383 U. S. 956-957.

In this Court petitioners contend that both these questions are federal ones to be decided under federal law; that under federal law we should hold that denial of a federal constitutional right, no matter how unimportant, should automatically result in reversal of a conviction, without regard to whether the error is considered harmless; and that, if wrong in this, the various comments on petitioners' silence cannot, applying a federal standard, be considered harmless here.

In devising a harmless-error rule for violations of federal constitutional rights, both the Court and the dissent proceed as if the question were one of first impression. But in a long line of cases, involving a variety of constitutional claims in both state and federal prosecutions, this Court has steadfastly rejected any notion that constitutional violations might be disregarded on the ground that they were "harmless." Illustrations of the principle are legion.

When involuntary confessions have been introduced at trial, the Court has always reversed convictions regardless of other evidence of guilt. As we stated in Lynumn v. Illinois, 372 U. S. 528, 537, the argument that the error in admitting such a confession "was a harmless one . . . is an impermissible doctrine." That conclusion 43 *43 has been accorded consistent recognition by this Court. Malinski v. New York, 324 U. S. 401, 404; Payne v. Arkansas, 356 U. S. 560, 568; Spano v. New York, 360 U. S. 315, 324; Haynes v. Washington, 373 U. S. 503, 518-519; Jackson v. Denno, 378 U. S. 368, 376-377. Even when the confession is completely "unnecessary" to the conviction, the defendant is entitled to "a new trial free of constitutional infirmity." Haynes v. Washington, supra, at 518-519.^[1]

When a defendant has been denied counsel at trial, we have refused to consider claims that this constitutional error might have been harmless. "The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U. S. 60, 76. That, indeed, was the whole point of Gideon v. Wainwright, 372 U. S. 335, overruling Betts v. Brady, 316 U. S. 455. Even before trial, when counsel has not been provided at a critical stage, "we do not stop to determine whether prejudice resulted." Hamilton v. Alabama, 368 U. S. 52, 55; White v. Maryland, 373 U. S. 59, 60.

A conviction must be reversed if the trial judge's remuneration is based on a scheme giving him a financial interest in the result, even if no particular prejudice is shown and even if the defendant was clearly guilty. Tumey v. Ohio, 273 U. S. 510, 535. To try a defendant in a community that has been exposed to publicity highly 44 *44 adverse to the defendant is per se ground for reversal of his conviction; no showing need be made that the jurors were in fact prejudiced against him. Sheppard v. Maxwell, 384 U. S. 333, 351-352; cf. Rideau v. Louisiana, 373 U. S. 723, 727. See also Estes v. Texas, 381 U. S. 532, 542-544; 562-564 (WARREN, C. J., concurring); 593-594 (HARLAN, J., concurring).

When a jury is instructed in an unconstitutional presumption, the conviction must be overturned, though there was ample evidence apart from the presumption to sustain the verdict. Bollenbach v. United States, 326 U. S. 607, 614-615. Reversal is required when a conviction may have been rested on a constitutionally impermissible ground, despite the fact that there was a valid alternative ground on which the conviction could have been sustained. Stromberg v. California, 283 U. S. 359, 367-368; Williams v. North Carolina, 317 U. S. 287, 292. In a long line of cases leading up to and including Whitus v. Georgia, 385 U. S. 545, it has never been suggested that reversal of convictions because of purposeful discrimination in the selection of grand and petit jurors turns on any showing of prejudice to the defendant.

Errors Subject to the Chapman Analysis 1713

Harmless Error Review as a Way to Avoid Ruling on the Merits of the Constitutional Challenge 1714

Constitutional Errors Not Subject to Harmless Error Review 1714

Involuntary Confessions: Arizona v. Fulminante 1715

Questions About Fulminante 1715

Error in a Burden of Proof Instruction: Sullivan v.

Louisiana ...........................•·•· •• •·• •·• 1716

Sullivan v. Louisiana, 508 US 275 - Supreme Court 1993

In Chapman v. California, 386 U. S. 18 (1967), we rejected the view that all federal constitutional errors in the course of a criminal trial require reversal. We held that the 279 *279 Fifth Amendment violation of prosecutorial comment upon the defendant's failure to testify would not require reversal of the conviction if the State could show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id., at 24. The Chapman standard recognizes that "certain constitutional errors, no less than other errors, may have been `harmless' in terms of their effect on the factfinding process at trial." Delaware v. Van Arsdall, 475 U. S. 673, 681 (1986). Although most constitutional errors have been held amenable to harmless-error analysis, see Arizona v. Fulminante, 499 U. S. 279, 306-307 (1991) (opinion of Rehnquist, C. J., for the Court) (collecting examples), some will always invalidate the conviction. Id., at 309-310 (citing, inter alia, Gideon v. Wainwright, 372 U. S. 335 (1963) (total deprivation of the right to counsel); Tumey v. Ohio, 273 U. S. 510 (1927) (trial by a biased judge); McKaskle v. Wiggins, 465 U. S. 168 (1984) (right to self-representation)). The question in the present case is to which category the present error belongs.

Chapman itself suggests the answer. Consistent with the jury-trial guarantee, the question it instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. See Chapman, supra, at 24 (analyzing effect of error on "verdict obtained"). Harmless-error review looks, we have said, to the basis on which "the jury actually rested its verdict." Yates v. Evatt, 500 U. S. 391, 404 (1991) (emphasis added). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee. See Rose 280 *280 v. Clark, 478 U. S. 570, 578 (1986); id., at 593 (Blackmun, J., dissenting); Pope v. Illinois, 481 U. S. 497, 509-510 (1987) (Stevens, J., dissenting).

Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-areasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt—not that the jury's actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. See Yates, supra, at 413-414 (Scalia, J., concurring in part and concurring in judgment). The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty. See Bollenbach v. United States, 326 U. S. 607, 614 (1946).

Insofar as the possibility of harmless-error review is concerned, the jury-instruction error in this case is quite different from the jury-instruction error of erecting a presumption regarding an element of the offense. A mandatory presumption—for example, the presumption that a person intends the ordinary consequences of his voluntary acts—violates the Fourteenth Amendment, because it may relieve the State of its burden of proving all elements of the offense. Sandstrom v. Montana, 442 U. S. 510 (1979); Francis v. Franklin, 471 U. S. 307 (1985). But "[w]hen a jury is instructed to presume malice from predicate facts, it still must 281 *281 find the existence of those facts beyond a reasonable doubt." Rose v. Clark, supra, at 580. And when the latter facts "are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed." Carella v. California, 491 U. S. 263, 271 (1989) (Scalia, J., concurring in judgment). See also Pope, supra, at 504 (Scalia, J., concurring). A reviewing court may thus be able to conclude that the presumption played no significant role in the finding of guilt beyond a reasonable doubt. Yates, supra, at 402-406. But the essential connection to a "beyond a reasonable doubt" factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, "the wrong entity judge[s] the defendant guilty." Rose, supra, at 578.

Another mode of analysis leads to the same conclusion that harmless-error analysis does not apply: In Fulminante, we distinguished between, on the one hand, "structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards," 499 U. S., at 309, and, on the other hand, trial errors which occur "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented," id., at 307-308. Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a "basic protectio[n]" whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function, Rose, supra, at 577. The right to trial by jury reflects, we have said, "a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U. S., at 155. The deprivation of that right, 282 *282 with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as "structural error."

Erroneous Instructions on the Elements of a Crime: Neder v. United States 1717

The trial judge in Neder v. United States, 527 U.S. 1 (1999) err _,i: :iously instructed the jury that it would not have to decide whether Ne,!;,r"s false statements on tax forms were "material." In the trial judge's viF-w, the question of materiality was for the judge, not the jury. Neder wa:; convicted. The instruction was error because materiality is an element of the crime of tax fraud, and therefore the question of m,ileriality was for the jury. On appeal, the government agreed with the defendant that the erroneous instruction was error, but argued that the error was harmless. Neder argued that depriving the jury of the power to decide an element of the crime can never be harmless. The Supreme Court, in an opinion by Chief Justice Rehnquist, held that such an error was subject to harmless error review. He analyzed the harmless error question in the following passage:

Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt or innocence. * * * In fact, as this case shows, quite the opposite is true: Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder's defense against the tax charges. Of course, the court erroneously failed to charge the jury on the element of materiality, but that error did not render Neder's trial "fundamentally unfair," as that term is used in our cases.

The Chief Justice distinguished Sullivan on the ground that a defective instruction as to one element of a crime did not vitiate all of the jury's findings. He also relied on prior case law finding defective instructions on issues other than reasonable doubt to be harmless error.

Apprendi Violations Can Be Harmless: Washington v. Recuenco 1719

In Apprendi v. New Jersey, discussed in Chapters 10 and 11, the Court held that the Sixth Amendment was violated when the defendant received a sentence beyond the statutory maximum on the basis of facts proven to the judge at sentencing, but not to the jury. In Washington v. Recuenco, 548 U.S. 212 (2006), the Court held that Apprendi violations are not "structural" and are subject to harmless error review. Justice Thomas, writing for six members of the Court, relied heavily on Neder v. United States; as in Neder an issue was taken from the jury and given to the judge (the difference in Apprendi being that the issue was decided by the judge at sentencing rather than at trial). Justice Thomas reasoned as follows:

The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of "armed with a firearm" to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.

''.'he Court remanded for a determination of whether the error was han·,iless. Justice Kennedy wrote a short concurring opinion emphasizing thal" the Court was not revisiting the merits of its Apprendi ju1·isprudence. Justice Stevens wrote a short dissent, contending that the Court should never have taken the case because the state cotu·t's decision cou l·l have been based on its own constitution. Justice Ginsburg wrote a separate dissenting opinion joined by Justice Stevens.

Automatic Reversal for Violation of the Right to Counsel of Choice: United States v. Gonzalez-Lopez 1719

Breach of Plea Agreement Is Not a Structural Error Justifying Automatic Relief: Puckett v. United States 1720

Improper Denial of a Peremptory Challenge Is Not Automatically Reversible: Rivera v. Illinois 1721

Harmlessness Standard for Non-Constitutional Error: The Kotteakos-Lane Rule 1721

In Kotteakos v. United States, 328 U.S. 750 (1946), the Court established a test of harmlessness for trial errors of a nonconstitutional dimension: reversal is not required if the federal appellate court "is sure that the error did not influence the jury or had but very slight effect." Put the other way, reversal is required for a non-constitutional error if it "had substantial and injurious effiect or influence in determining the jury's verdict." United States v. Lane, 474 U.S. 438 (1986) (applying the Kotteakos standard to a misjoinder under Fed.R.Crim.P. 8(b)). See also Fed.R.Crim.P. 52(a) (an error that does not affect "substantial rights must be disregarded.").

The Kotteakos-Lane standard is clearly less protective of defendants than the harmless error rule applied to constitutional errors under Chapman. See United States v. Owens, 789 F.2d 750 (9th Cir.1986) (if admission of prior identification was merely a violation of the hearsay rule, it was harmless under the Kottealws-Lane standard; but if admission also violated the defendant's constitutional right to confrontation, the error was harmful under the Chapman standard and reversal was required).

If you read federal cases from different circuits, you undoubtedly will find varying statements of the standard for harmless nonconstitutional error. Some examples are found in Saltzburg, Capra & Martin, 1 Federal Rules of Evidence manual § 103.03[1][d] (10th ed. 2011). State courts, although bound to apply Chapman to constitutional errors, are free to adopt their ownharmless error standards for nonconstitutional errors.

United States v. Lane, 474 US 438 - Supreme Court 1986

Since Chapman, we have "consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations." United States v. Hasting, 461 U. S. 499, 509 (1983). In Hasting, we again emphasized that

"given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not guarantee such a trial." Id., at 508-509.

446 *446 In this case, the argument for applying harmless-error analysis is even stronger because the specific joinder standards of Rule 8 are not themselves of constitutional magnitude.^[8] Clearly, Chapman and Hasting dictate that the harmless-error rule governs here.^[9]

The applicability of harmless error to misjoinder also follows from Kotteakos v. United States, 328 U. S. 750 (1946), a case similar to the one at hand. There, some 32 defendants were charged with one conspiracy, when in fact there had been at least eight separate conspiracies. Nineteen defendants were jointly tried, and seven were convicted. The Court applied the harmless-error statute to an error resulting from a variance from the indictment, and held the error was not harmless in that case. Emphasizing the numerous conspiracies involving unrelated defendants, as well as seriously flawed jury instructions, the Kotteakos Court reversed the convictions in light of each of the 32 defendants' "right not to be tried en masse for the conglomeration of distinct and separate offenses" involved. Id., at 775.

Under Rule 52(a), the harmless-error rule focuses on whether the error "affect[ed] substantial rights." In Kotteakos the Court construed a harmless-error statute with similar language, and observed:

"The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." 328 U. S., at 765.

Invoking the Kotteakos test, we hold that an error involving misjoinder "affects substantial rights" and requires reversal only if the misjoinder results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict." Id., at 776. Only by so holding can we bring Rules 8 and 52(a) "into substantial harmony, not into square conflict."^[12] Id., at 775.

450 *450 Of course, "we are not required to review records to evaluate a harmless-error claim, and do so sparingly, [but] we plainly have the authority to do so." United States v. Hasting, 461 U. S., at 510 (footnote omitted).

In the face of overwhelming evidence of guilt shown here, we are satisfied that the claimed error was harmless. When evidence on misjoined Count 1 was introduced, the District Court provided a proper limiting instruction, and in the final charge repeated that instruction and admonished the jury to consider each count and defendant separately. Moreover, the same evidence on Count 1 would likely have been admissible on joint retrial of Counts 2 through 6 to show James Lane's intent under Federal Rule of Evidence 404(b). Any error therefore failed to have any "substantial influence" on the vrdict. Kotteakos, supra, at 765.^[13]

2. Plain Error 1722

The harmless error standards discussed above are applied when the defendant makes a timely and specific objection at trial. A more stringent standard for reversal is applied when the defendant fails to make an objection at trial, and then argues on appeal that the trial court was in error. The appellate court in such a situation reviews for "plain error." The rationale for the more stringent standard is that if a defendant does not properly object at trial, he deprives the trial judge of the opportunity to focus on the problem and perhaps correct the error at that point. The distinction between harmful error and plain error is set forth in Federal Rule of Criminal Procedure 52, which states as follows:

Harmless Error. Any error, defect, irregularity or variR::c0 that does not affect substantial rights must be disregarded.
Plain Error. A plain error that affects substantial rig11 :; may be considered even though it was not brought to the cou::.·.J attention.

Thus, Rule 52(a), by negative implication, states that reversal is required if the error affected substantial rights.a However, if the defendant did not bring the error to the attention of the court, then a reversal may be granted under Rule 52(b) if the error affected substantial rights.

8 This is the harmless error standard applied for non-constitutional errors. For conHitutional errors on direct review. the more defendant-friendly Chapman standard requires reversal unless the error washarmless beyond a reasonable doubt.

Application of the Plain Error Standard: United States v. Olano 1723

Error "Plain" at the Time of Appellate Review: Johnson v. United States 1724

The Supreme Court had occasion to review the concept of "plain error," and its distinction from harmful error, in United States v. Olano, 507 U.S. 725 (1993). The Court held that the presence of alternate jurors during deliberations was not, under the circumstances of the case, an error that the court of appeals was authorized to correct under Fed.R.Crim.P. 52(b). The defendants had not objected to the presence of the alternate jurors during the deliberations, even though this practice at the time violated the plain terms of Fed.R.Crim.P. 24(c). [The current Rule 24 allows the court to retain alternate jurors even after the jury retires to deliberate although the alternates cannot participate in deliberations unless they actually replace regular jurors].

Writing for the Court, Justice O'Connor reasoned that Rule 52(b) "defines a single category of forfeited-but-reversible error." She identified three conditions on a court's power to reverse because of errors that were not properly preserved for review in the trial court:

There must be an error, i.e., a deviation from a legal rule absen1 a waiuer by a defendant. Justice O'Connor distinguished waiver of; right from forfeiture of a right, stating that "[w]hereas forfeiture i: the failure to make the timely assertion of a right, waiver is the intentional relinquishment of a known right." Thus, if the defendant knowingly and voluntarily waives a right-such as the right to a jury trial-there is no error in the proceedings and the plain error rule is inapplicable. If, on the other hand, the defendant fails to object to an l!;·roneous ruling by the trial court, then the plain error standard is .....pplicable.
. The error must be plain, which means it must be clear or 1)bvious-so obvious that the judge should have seen it even though it was not flagged by defense counsel.
The plain error must affect substantial rights, which means that it must have been prejudicial in the sense of affecting the outcome of the case.

Justice O'Connor emphasized that the language of Rule 52(b) is permissive, not mandatory. She stated that "the Court of Appeals should correct a plain forfeited error affecting substantial rights if the error seriously affiects the fairness, integrity or public reputation of judicial proceedings." However, a "plain error affecting substantial rights, does not, without more" mandate reversal, "for otherwise the discretion afforded by Rule 52(b) would be rendered illusory."

So in essence there is a fourth requirement for plain error reversal the error if uncorrected would seriously affect the fairness, integrity or public reputation of judicial proceedings.

Justice O'Connor compared Rule 52(a), which defines harmless error, with Rule 52(b). She concluded that the rules were different in the manner in which they allocated the burden of persuasion in showing prejudice. She analyzed the difference between the rules as follows:

When the defendant has made a timely objection to an error and Rule 52(a) applies, the Court of Appeals normally engages in a specific analysis of the District Court record-a so-called "harmless error" inquiry-to determine whether the error was prejudicial. Rule 52(b) normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, the Court of Appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial. This burden-shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: while Rule 52(a) precludes error-correction only if the error"does not aff.ect substantial rights" (emphasis added), Rule 52(b) authorizes no remedy unless the error does "affec[t] substantial rights."

Justice O'Connor left open the possibility that "[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome," and declined to address the errors that should be presumed prejudicial. She concluded that normally, the defendant must make a "specific showing of prejudice" under Rule 52(b).

In Olano, the Court held that the defendants had failed to show thlit their substantial rights had been affected by any error. Justice O'Cor-o1ur noted that the trial judge instructed the alternates that they were noi. •.:.') participate in deliberations, and that the defendants had made r:o showing that the presence of the alternates affected deliberations in a:'.-Y way.9

United States v. Olano, 507 US 725 - Supreme Court 1993

"No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U. S. 414, 444 (1944). Federal Rule of Criminal Procedure 52(b), which governs on appeal from criminal proceedings, provides a court of appeals a limited power to correct errors that were forfeited because not timely raised in district court. The Rule has remained unchanged since the original version of the Criminal Rules, and was intended as "a restatement of existing law." Advisory Committee's Notes on Fed. Rule Crim. Proc. 52, 18 U. S. C. App., p. 833. It is paired, appropriately, with Rule 52(a), which governs nonforfeited errors. Rule 52 provides:

"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

"(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

732 *732 Although "[a] rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with . . . the rules of fundamental justice," Hormel v. Helvering, 312 U. S. 552, 557 (1941), the authority created by Rule 52(b) is circumscribed. There must be an "error" that is "plain" and that "affect[s] substantial rights." Moreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error "`seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " United States v. Young, 470 U. S. 1, 15 (1985) (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)).

…

Rule 52(b) defines a single category of forfeited-butreversible error. Although it is possible to read the Rule in the disjunctive, as creating two separate categories—"plain errors" and "defects affecting substantial rights"—that reading is surely wrong. See Young, 470 U. S., at 15, n. 12 (declining to adopt disjunctive reading). As we explained in Young, the phrase "error or defect" is more simply read as "error." Ibid. The forfeited error "may be noticed" only if it is "plain" and "affect[s] substantial rights." More precisely, a court of appeals may correct the error (either vacating for a new trial, or reversing outright) only if it meets these criteria. The appellate court must consider the error, putative or real, in deciding whether the judgment below should be overturned, but cannot provide that remedy unless Rule 52(b) applies (or unless some other provision authorizes the error's correction, an issue that respondents do not raise).

The first limitation on appellate authority under Rule 52(b) is that there indeed be an "error." Deviation from a legal 733 *733 rule is "error" unless the rule has been waived. For example, a defendant who knowingly and voluntarily pleads guilty in conformity with the requirements of Rule 11 cannot have his conviction vacated by a court of appeals on the ground that he ought to have had a trial. Because the right to trial is waivable, and because the defendant who enters a valid guilty plea waives that right, his conviction without a trial is not "error."

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see, e. g., Freytag v. Commissioner, 501 U. S. 868, 894, n. 2 (1991) (Scalia, J., concurring in part and concurring in judgment) (distinguishing between "waiver" and "forfeiture"); Spritzer, Criminal Waiver, Procedural Default and the Burger Court, 126 U. Pa. L. Rev. 473, 474-477 (1978) (same); Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214, 1214— 1215 (1977) (same). Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake. See, e. g., 2 W. LaFave & J. Israel, Criminal Procedure § 11.6 (1984) (allocation of authority between defendant and counsel); Dix, Waiver in Criminal Procedure: A Brief for More Careful Analysis, 55 Texas L. Rev. 193 (1977) (waivability and standards for waiver). Mere forfeiture, as opposed to waiver, does not extinguish an "error" under Rule 52(b). Although in theory it could be argued that "[i]f the question was not presented to the trial court no error was committed by the trial court, hence there is nothing to review," Orfield, The Scope of Appeal in Criminal Cases, 84 U. Pa. L. Rev. 825, 840 (1936), this is not the theory that Rule 52(b) adopts. If a legal rule was violated during the district court proceedings, 734 *734 and if the defendant did not waive the rule, then there has been an "error" within the meaning of Rule 52(b) despite the absence of a timely objection.

The second limitation on appellate authority under Rule 52(b) is that the error be "plain." "Plain" is synonymous with "clear" or, equivalently, "obvious." See Young, supra, at 17, n. 14; United States v. Frady, 456 U. S. 152, 163 (1982). We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.

The third and final limitation on appellate authority under Rule 52(b) is that the plain error "affec[t] substantial rights." This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings. See, e. g., Bank of Nova Scotia v. United States, 487 U. S. 250, 255-257 (1988); United States v. Lane, 474 U. S. 438, 454-464 (1986) (Brennan, J., concurring in part and dissenting in part); Kotteakos v. United States, 328 U. S. 750, 758-765 (1946). When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record—a so-called "harmless error" inquiry—to determine whether the error was prejudicial. Rule 52(b) normally requires the same kind of inquiry, with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial. See Young, supra, at 17, n. 14 ("[F]ederal courts have consistently interpreted the plain-error doctrine as requiring an appellate court to find that the claimed error. . . had [a] prejudicial impact on the jury's deliberations"). This burden shifting is dictated by a subtle but important 735 *735 difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error "does not affect substantial rights" (emphasis added), Rule 52(b) authorizes no remedy unless the error does "affec[t] substantial rights." See also Note, Appellate Review in a Criminal Case of Errors Made Below Not Properly Raised and Reserved, 23 Miss. L. J. 42, 57 (1951) (summarizing existing law) ("The error must be real and such that it probably influenced the verdict . . .").

We need not decide whether the phrase "affecting substantial rights" is always synonymous with "prejudicial." See generally Arizona v. Fulminante, 499 U. S. 279, 310 (1991) (constitutional error may not be found harmless if error deprives defendant of the "`basic protections [without which] a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair' ") (quoting Rose v. Clark, 478 U. S. 570, 577-578 (1986)). There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome, but this issue need not be addressed. Nor need we address those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice. 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).

Rule 52(b) is permissive, not mandatory. If the forfeited error is "plain" and "affect[s] substantial rights," the court of appeals has authority to order correction, but is not required to do so. The language of the Rule ("may be noticed"), the nature of forfeiture, and the established appellate practice that Congress intended to continue all point to this conclusion. "[I]n criminal cases, where the life, or as in this case the liberty, of the defendant is at stake, the courts of the United States, in the exercise of a sound discretion, may 736 *736 notice [forfeited error]." Sykes v. United States, 204 F. 909, 913-914 (CA8 1913). Accord, Crawford v. United States, 212 U. S. 183, 194 (1909); former Supreme Court Rule 27.6 (1939) (cited in Advisory Committee's Notes on Fed. Rule Crim. Proc. Rule 52(b), 18 U. S. C. App., p. 833) ("`[T]he court, at its option, may notice a plain error not assigned or specified' ").

We previously have explained that the discretion conferred by Rule 52(b) should be employed "`in those circumstances in which a miscarriage of justice would otherwise result.' " Young, 470 U. S., at 15 (quoting Frady, supra, at 163, n. 14). In our collateral-review jurisprudence, the term "miscarriage of justice" means that the defendant is actually innocent. See, e. g., Sawyer v. Whitley, 505 U. S. 333, 339— 340 (1992). The court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant, see, e. g., Wiborg v. United States, 163 U. S. 632 (1896), but we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.

Rather, the standard that should guide the exercise of remedial discretion under Rule 52(b) was articulated in United States v. Atkinson, 297 U. S. 157 (1936). The court of appeals should correct a plain forfeited error affecting substantial rights if the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id., at 160. As we explained in Young, the "standard laid down in United States v. Atkinson [was] codified in Federal Rule of Criminal Procedure 52(b)," 470 U. S., at 7, and we repeatedly have quoted the Atkinson language in describing plain-error review, see id., at 15; Frady, supra, at 163, n. 13; Silber v. United States, 370 U. S. 717, 718 (1962) (per curiam); Johnson v. United States, 318 U. S. 189, 200 (1943); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 239 (1940); see also Connor v. Finch, 431 U. S. 407, 421, n. 19 (1977) (civil appeal). An error may "seriously affect the fairness, integrity or public reputation of judicial proceedings" independent of the 737 *737 defendant's innocence. Conversely, a plain error affecting substantial rights does not, without more, satisfy the Atkinson standard, for otherwise the discretion afforded by Rule 52(b) would be illusory.

United States v. Flores, 995 F. 3d 214 - Court of Appeals, Dist. of Columbia Circuit 2021

Flores also argues that we should vacate his convictions for accessory after the fact to the murder and attempted murder of U.S. officials under Section 1114. Because Section 1114 does not apply extraterritorially, as Garcia Sota recognized, Flores maintains that the district court erred in convicting him under that statute for crimes committed in Mexico. The government responds that Flores forfeited this argument by failing to raise it on direct appeal. Because we find plain error in this case, we conclude that Flores' convictions under Section 1114 must be vacated.

In general, an appellant who fails to raise an available issue in an initial appeal may not raise that claim in a second appeal after remand because such claims are forfeited. See, e.g., United States v. Saani, 794 F.3d 44, 48 (D.C. Cir. 2015). Absent plain error, we will not vacate or reverse in a second appeal based on an argument that could have been, but was not, raised in a first appeal. Id. Under Federal Rule of Criminal Procedure 52(b), "a court of appeals may correct [a forfeited] error" "only if it is plain and affects substantial rights." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 224 *224 L.Ed.2d 508 (1993) (cleaned up). "[A]nd the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (cleaned up).

As a threshold matter, for Rule 52(b) to apply, there must be an "error." "Deviation from a legal rule is `error' unless the rule has been waived." Id. at 732-33, 113 S.Ct. 1770. In this case, there was an error: Flores was convicted on two counts under Section 1114 for conduct that occurred in Mexico, though this court subsequently held that the statute does not apply extraterritorially. See Garcia Sota, 948 F.3d at 357. Although Flores pled guilty to these charges, his plea does not constitute a waiver of the legal rule under the reasoning in Class v. United States, ___ U.S. ___, 138 S. Ct. 798, 805-06, 200 L.Ed.2d 37 (2018). In Class, the Supreme Court held that "a guilty plea by itself [does not] bar[] a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal." Id. at 803. The underlying rationale of the Menna-Blackledge doctrine —which the Court applied in Class— also applies here. See id. at 803-04 (citing Menna v. New York, 423 U.S. 61, 63 & n.2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam); Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)). That doctrine provides "that a guilty plea does not bar a claim on appeal where on the face of the record the court had no power to enter the conviction or impose the sentence." Class, 138 S. Ct. at 804 (cleaned up). In light of this court's decision in Garcia Sota, it is now clear that the court had no power to convict and sentence Flores under Section 1114 because the underlying conduct occurred in Mexico. Because extraterritorial application of Section 1114 was an error, and Flores' guilty plea does not bar his claim on appeal, we proceed under the Rule 52(b) plain error framework.

We next consider whether the error was "plain," which may be apparent only on appeal. See Henderson v. United States, 568 U.S. 266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) (concluding that "whether a legal question was settled or unsettled at the time of trial, it is enough that an error be plain at the time of appellate consideration") (cleaned up). At the time of Flores' trial and first appeal, the extraterritorial application of Section 1114 was an unsettled question in this circuit. After Garcia Sota, however, it is now clear that Section 1114 has no extraterritorial application, so the district court's error is plain.

Third, the error must "affect[ ] substantial rights." FED. R. CRIM. P. 52(b). The Supreme Court has explained that "[i]n most cases," affecting the defendant's substantial rights "means that the error must have been prejudicial," and also that some errors may be "presumed prejudicial." Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. Prejudice exists where the error "affected the outcome of the district court proceedings." Id. at 734, 113 S.Ct. 1770. Flores argues the Section 1114 convictions affect his substantial rights because he "stands convicted of two crimes for which the government lacked the power to constitutionally prosecute him." Flores Br. 39. The district court's error of applying Section 1114 extraterritorially "affected the outcome of the district court proceedings" because Flores would not have been convicted under Section 1114. Olano, 507 U.S. at 734, 113 S.Ct. 1770.

Although vacating the Section 1114 convictions would not directly reduce Flores' 225 *225 prison sentence,^[7] the convictions have other consequences, including that Flores remains responsible for a $100 special assessment for each of the two Section 1114 convictions. The dissent dismisses these special assessments as mere "trifles," Dissenting Op. 228, but the modest sums nonetheless constitute punishments. See Rutledge v. United States, 517 U.S. 292, 301, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (holding that a second conviction that carries with it a special assessment "amount[s] to a second punishment").

Furthermore, the erroneous convictions also affect Flores' substantial rights because they have "potential adverse collateral consequences that may not be ignored." Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985); see also Rutledge, 517 U.S. at 302-03, 116 S.Ct. 1241 (reaffirming Ball). For example, Flores would continue to have two very serious convictions on his record (accessory to murder and to attempted murder), which would affect his criminal history category and thus his sentence if he is convicted of any future offenses. See Ball, 470 U.S. at 865, 105 S.Ct. 1668. Even if Flores is charged but not convicted of a future offense, a judge may consider his criminal history when deciding whether to grant bail pending trial, which would affect his liberty. The convictions may also "be used to impeach [Flores'] credibility and certainly carr[y] the societal stigma accompanying any criminal conviction." Id.

Thus, even though the convictions do not affect the length of the current sentence, they infringe Flores' liberty and constitute "an impermissible punishment." Id.; see also United States v. Tann, 577 F.3d 533, 539-40 (3d Cir. 2009) ("Following Ball and Rutledge, numerous courts of appeals ... have concluded that a defendant's substantial rights are affected by the additional, unauthorized conviction, even when the immediate practical effect may not increase the defendant's prison term, or may only be a negligible assessment."); id. at 539 n.7 (collecting cases).^[8] The erroneous convictions affect Flores' substantial rights by leaving in place the special assessments and subjecting him to the collateral consequences of two serious criminal convictions.^[9]

Finally, because Rule 52 is "permissive, not mandatory," we must consider "whether the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Henderson, 568 U.S. at 272, 133 S.Ct. 1121 (cleaned up). "An error may seriously affect the fairness, integrity or public reputation of judicial 226 *226 proceedings independent of the defendant's innocence." Olano, 507 U.S. at 736-37, 113 S.Ct. 1770 (cleaned up). As discussed, vacatur will not decrease Flores' sentence, but the erroneous convictions have the type of potential adverse consequences recognized by the Supreme Court as additional punishments, which in turn seriously affect the fairness of the judicial proceedings. In addition, because it is now plain that courts in this circuit lack the power to convict and punish Flores under Section 1114 for extraterritorial conduct, it would seriously affect the integrity and public reputation of the courts to nonetheless affirm such convictions and punishments.

When determining whether to exercise our discretion to address an issue that could have been raised in an initial appeal, we have considered whether there is an "exceptional circumstance[], where injustice might otherwise result." See United States v. Henry, 472 F.3d 910, 913 (D.C. Cir. 2007) (per curiam) (cleaned up); see also United States v. Brice, 748 F.3d 1288, 1289 (D.C. Cir. 2014). And "we have suggested that an intervening change in the law can constitute an exceptional circumstance." Henry, 472 F.3d at 914 (cleaned up). Here, there was an intervening change in the law—this court decided Garcia Sota after the district court had resentenced Flores. "[I]njustice might otherwise result" if Flores continues to be punished for conduct that does not constitute a crime pursuant to the law under which he was convicted. Id. at 913 (cleaned up). Placing our imprimatur on an erroneous conviction would cause a "reasonable citizen" to take a "diminished view of the judicial process and its integrity." Rosales-Mireles v. United States, ___ U.S. ___, 138 S. Ct. 1897, 1908, 201 L.Ed.2d 376 (2018) (cleaned up).^[10]

With no mention of the plain error analysis, the government maintains that Flores forfeited his argument by failing to raise it in the district court and therefore we cannot consider his claims here. Instead, the government states that Flores must first bring his claim in the district court pursuant to 28 U.S.C. § 2255 and show "he is innocent of both the charges related to [Section] 1114 and other, more or equally serious charges that the government forewent during the course of plea negotiations." Gov't Br. 32. The government relies on Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), which established that, in the context of habeas proceedings, "where the [g]overnment has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges." Id. at 624, 118 S.Ct. 1604. But this is not a habeas proceeding, and the government does not address why the plain error framework should not apply to Flores' appeal of the district court's resentencing. Under the plain error analysis, Flores is not required to show actual innocence to secure a remedy. See Olano, 507 U.S. at 227 *227 736-37, 113 S.Ct. 1770 ("[W]e have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence. Rather, ... [a]n error may `seriously affect the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence."). Nothing in Olano requires that we consider foregone charges when determining' whether an error is plain and affects substantial rights.

Because we find a plain error occurred, we consider Flores' forfeited argument challenging his convictions under Section 1114. Addressing the merits of that argument is straightforward: We vacate Flores' two convictions under Section 1114 because that statute does not apply extraterritorially.

Rule 52. Harmless and Plain Error

(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.

Plain Error Review of an Apprendi Violation: United States v. Cotton 1726

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." [Apprendi is set forth in full in the Chapter 10 discussion of constitutionally-based proof requirements]. In federal prosecutions, such facts must also be charged in the indictment. In United States v. Cotton, 535 U.S. 625 (2002). the Court reviewed an Apprendi violation for plain error. The defendants in Cotton received a sentence beyond the statutory maximum, after the trial judge (rather than the jury) found that the drug offenses involved more than 50 grams of cocaine base. The indictment made no allegation as to any amount of drugs. The government conceded that the defendants' enhanced sentence was erroneous under Apprendi, but pointed out that the defendants had failed to raise the Apprendi argument before the district court.

The Supreme Court, in an opinion by Chief Justice Rehnquist, held that the defendants were not entitled to relief because they could not meet their burden of showing plain error under the circumstances. Chief Justice Rehnquist concluded that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

Plain Error Review of Failure to Obtain a Knowing and Intelligent Guilty Plea: United States v. Dominguez- Benitez 1727

The Court remanded for a determination of whether the defendant could prove plain error. It noted that relevant factors would include the

difference between the sentence the defendant received and the sentence he anticipated under the agreement; the strength of the evidence that could have been presented at trial; and "any record evidence tending to show that a misunderstanding was inconsequential to a defendant's decision, or evidence indicating the relative significance of other facts that mayhave borne

Plain Error Standard Applies to Forfeited Objection on Breach of Plea Agreement: Puckett v. United States 1728

In Puckett v. United States, 556 U.S. 129 (2009), Puckett argued that the plain error standard was inappropriate when the error was the breach of a plea agreement. But the Court, in an opinion by Justice Scalia, disagreed.

"Any Possibility" Test Is Too Permissive for Plain Error Review: United States v. Marcus 1729

In United States v. Marcus, 560 U.S. 258 (2010), the Court was reviewing a Second Circuit decision conducting plain error review of a claim that Marcus did not raise at trial. Marcus was convicted of sex trafficking. On appeal, for the first time, he argued that some of his conduct preceded the statute under which he was convicted, and therefore his conviction violated the Ex Post Facto Clause of the Constitution. The Government argued that because some of the conduct was conceded to be after the statute went into effect, there was no error that aff.ected Marcus's substantial rights. Justice Breyer, writing for the Court, framed the issue as follows:

The Second Circuit has said that it must recognize a "plain error" if there is "any possibility," however remote, that a jury convicted a defendant exclusively on the basis of actions taken before enactment of the statute that made those actions criminal.

Justice Breyer found the "any possibility" standard toopermissive fot plain error review. He explained that the standard was inconsistent with the : hird criteria for plain error review established in the Court's cases:

The third criterion specifies that a "plain error" must "affec[t]" the appellant's "substantial rights." In the ordinary case, to meet this standard an error must be "prejudicial," which means that there must be a reasonable probability that the error affected the outcome of the trial. The Court of Appeals, however, would notice a "plain

?rror" and set aside a conviction whenever there exists "any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct." This standard is irreconcilable with our "plain error" precedent.

US v. Marcus, 560 US 258 - Supreme Court 2010

Rule 52(b) permits an appellate court to recognize a "plain error that affects substantial rights," even if the claim of error was "not brought" to the district court's "attention." Lower courts, of course, must apply the Rule as this Court has interpreted it. And the cases that set forth our interpretation hold that an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an "error"; (2) the error is "clear or obvious, rather than subject to reasonable dispute"; (3) the error "affected the appellant's substantial rights, which in the ordinary case means" it "affected the outcome of the district court proceedings"; and (4) "the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (internal quotation marks omitted); see also United States v. Olano, 507 U.S. 725, 731-737, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Johnson v. United States, 520 U.S. 461, 466-467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Cotton, 535 U.S. 625, 631-632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).

In our view, the Second Circuit's standard is inconsistent with the third and the fourth criteria set forth in these cases. The third criterion specifies that a "plain error" must "affec[t]" the appellant's "substantial rights." In the ordinary case, to meet this standard an error must be "prejudicial," which means that there must be a reasonable probability that the error affected the outcome of the trial. Olano, supra, at 734-735, 113 S.Ct. 1770 (stating that, to satisfy the third criterion of Rule 52(b), a defendant must "normally" demonstrate that the alleged error was not "harmless"); see also United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The Court of Appeals, however, would notice a "plain error" and set aside a conviction whenever there exists "any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct." 538 F.3d, at 102. This standard is irreconcilable with our "plain error" precedent. See, e.g., Olano, supra, at 734-735, 113 S.Ct. 1770.

We recognize that our cases speak of a need for a showing that the error affected the "outcome of the district court proceedings" in the "ordinary case." Puckett, 556 U.S., at 135, 129 S.Ct., at 1429 (internal quotation marks omitted). And we have noted the possibility that certain errors, termed "structural errors," might "affec[t] substantial rights" regardless of their actual impact on an appellant's trial. See id., at 140-141, 129 S.Ct., at 1432 (reserving the question whether "structural errors" automatically satisfy the third "plain error" criterion); Cotton, supra, at 632, 122 S.Ct. 1781 (same); Johnson, supra, at 469, 117 S.Ct. 1544 (same); Olano, supra, at 735, 113 S.Ct. 1770 (same). But "structural errors" are "a very limited class" of errors that affect the "`framework within which the trial proceeds,'" Johnson, supra, at 468, 117 S.Ct. 1544 2165 *2165 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)), such that it is often "difficul[t]" to "asses[s] the effect of the error," United States v. Gonzalez-Lopez, 548 U.S. 140, 149, n. 4, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). See Johnson, supra, at 468-469, 117 S.Ct. 1544 (citing cases in which this Court has found "structural error," including Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (total deprivation of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of an impartial trial judge); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (right to self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (violation of the right to a public trial); and Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt instruction)). We cannot conclude that the error here falls within that category.

The error at issue in this case created a risk that the jury would convict respondent solely on the basis of conduct that was not criminal when the defendant engaged in that conduct. A judge might have minimized, if not eliminated, this risk by giving the jury a proper instruction. We see no reason why, when a judge fails to give such an instruction, a reviewing court would find it any more difficult to assess the likely consequences of that failure than with numerous other kinds of instructional errors that we have previously held to be non-"structural"—for example, instructing a jury as to an invalid alternative theory of guilt, Hedgpeth v. Pulido, 555 U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008) (per curiam), omitting mention of an element of an offense, Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), or erroneously instructing the jury on an element, Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curium); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

------------------------

Preservation Rules in the Federal Courts of Appeals

WAIVER, FORFEITURE, AND THE PLAIN-ERROR STANDARD Common parlance and even some judicial decisions often

fail to distinguish between arguments that are waived and arguments that are forfeited. The two concepts are distinct, and the differences can be, and often are, dispositive.

Waiver requires some intentional act by a party.¹² It occurs when a party has “intentionally relinquished or abandoned” an argument either in the district court or on appeal.¹³ For example, under the invited-error doctrine, a party may not induce action by the district court and later seek reversal on the same ground.¹⁴ Likewise, a party may not appeal based on an argument she has expressly abandoned.¹⁵ In either situation, a waiver has occurred, and the party “is not entitled to appellate relief.”¹⁶

Forfeiture is different. It happens not by a deliberate act, but by neglecting to present an argument to the district court.¹⁷ Unlike a waived argument, a forfeited argument may be grounds for reversal on appeal, but only if affirming the district court would result in plain error.¹⁸ Plain error generally requires the proponent of the new argument to show “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of

judicial proceedings.”¹⁹ If each of these elements is satisfied, the court “may exercise discretion to correct the error.”²⁰

The Elements of Plain Error

Plain error has the unique distinction of being both a standard of review and a multi-pronged test, and the court will grant relief only if each prong of the test is satisfied. Still, always bear in mind the driving force behind the test: preserving the court’s discretion to correct “clear legal error that implicates a miscarriage of justice.”²¹ As the Seventh Circuit has aptly put it, relief is appropriate when a district court’s error “shakes one’s faith in the judicial process.”²²

Error

The first prong of the test goes to the merits of the forfeited argument. It requires the appellant to explain why the district court erred, or why error would otherwise result if the district court’s ruling is affirmed. Sometimes, the court tackles this element head-on, concludes there was no error, and declines to address the remaining prongs of the test.²³ In this situation, the argument gets its day in court as if it were not forfeited.

Plain

The second prong of the test examines whether the alleged error is plain. To be plain, the error must be “clear or obvious under current law.”²⁴ “Clear or obvious” means that there is controlling precedent on point, either from the Supreme Court, the relevant federal circuit, or (if the issue is one of state law) the relevant state courts.²⁵ In the absence of binding precedent, the clear weight of authority in other federal circuits might make an error plain.²⁶ By contrast, a circuit split will almost always foreclose a finding of plain error.²⁷

The error must be clear or obvious “under current law.”²⁸ Sometimes, a district court’s decision may be correct when rendered but erroneous at the time of appeal due to an intervening change in the law (such as new, binding precedent from the Supreme Court). Prior to 2013, there was a circuit split on how to handle this situation. The rule in the Tenth Circuit was to assess the error “at the time of appeal.”²⁹ The Supreme Court recently affirmed this approach in Henderson v. United States, drawing on the basic principle that “an appellate court must apply the law in effect at the time it renders its decision.”³⁰

Affects Substantial Rights.

To satisfy the third prong of plain-error review, the appellant must show that the error affected her “substantial

rights.”³¹ This generally requires a showing of prejudice—“a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.”³² Put otherwise, the appellant must convince the court of appeals that the error was not harmless.³³ “[A]n error affecting a substantial right of a party is an error which had a ‘substantial influence’ on the outcome or [which] leaves one in ‘grave doubt’ as to whether it had such effect.”³⁴

This showing is easy when a district court’s plainly erroneous ruling was dispositive of the case or of an issue.³⁵ In that situation, the error was clearly prejudicial. However, when error is predicated on a district court’s incorrect evidentiary ruling or erroneous jury instruction, a showing of prejudice is much more difficult. The court of appeals must assess the error in light of the entire record³⁶ and must often make counterfactual predictions about how a factfinder would have decided the case in the absence of the error.³⁷

Although most kinds of error are amenable to harmless- error analysis under the third prong of plain-error review, the Supreme Court has recognized that “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.”³⁸ These so-called “structural errors” are constitutional defects that “affect[] the framework within which the trial proceeds, rather than simply . . . the trial process itself.”³⁹ Examples include the total denial of counsel, a biased trial judge, or racial discrimination in jury selection.⁴⁰ Like all arguments, a structural-error argument must first be presented to the district court and, if unpreserved, is subject to plain-error review. Yet because an analysis of its prejudicial effect is impossible, it is likely that structural error automatically satisfies the substantial-rights prong.⁴¹

Discretion.

If the first three prongs of the plain-error test are met, the court then asks whether the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”⁴² If so, the court “may exercise discretion to correct the error.”⁴³ This final prong of the test is purely discretionary, and it’s impossible to say in the abstract when it will apply. Courts typically exercise their discretion “when an error is ‘particularly egregious’ and the failure to remand for correction wouldproduce a ‘miscarriage of justice.’”⁴⁴ This standard is “formidable.”⁴⁵

At times, the Tenth Circuit has hinted at factors that help guide its discretion to consider new arguments. The court is more likely to consider a new argument if it presents a “strictly legal question the proper resolution of which is beyond doubt,”⁴⁶ or in “instances where public interest is implicated, . . . or where manifest injustice would result.”⁴⁷ In exercising its discretion, the court is “mindful of the policies behind the general rule” of preservation.⁴⁸ Thus, whether the court will entertain an unpreserved argument depends on, among other things, the adequacy of the factual record; prejudice or unfair surprise to the parties; whether the issue is antecedent to or dispositive of another issue before the court; the age and complexity of the case; the interests at stake, including the extent of liability faced by one or more of the parties; and whether resolving the newly raised issue allows the court to avoid a more difficult issue, such as an unsettled constitutional question.⁴⁹ Other circuits have articulated similar considerations.⁵⁰

Objections to Evidence

Federal Rule of Evidence 103(a) requires a party to timely object or make an offer of proof when the district court erroneously admits or excludes evidence.⁷³ Claims of evidentiary error, if properly preserved, are reviewed for abuse of discretion.⁷⁴ If a party does not timely object to the admission or exclusion of evidence, Rule 103(e) states that “[a] court may take notice of a plain error affecting a substantial right.”⁷⁵ This is the familiar plain-error standard.⁷⁶

Often, a party will tee up an evidentiary issue through a pretrial motion in limine. If the court rules on the motion, is it necessary for a party to renew an objection or offer of proof at trial? Rule 103(b) seems to say no: “Once the [district] court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”⁷⁷ Yet the Tenth Circuit has added its own gloss to this requirement. It applies a three-part test, called the contemporaneous-objection rule, to determine whether a party must object at the time of trial (when the evidence is actually admitted or excluded) in order to preserve objections made in an earlier motion in limine.⁷⁸ A party need not

contemporaneously object if “(1) the matter was adequately presented to the district court; (2) the issue was of a type that can be finally decided prior to trial; and (3) the court’s ruling was definitive.”⁷⁹

Adequately Presented

The “key inquiry” under the first prong of the test is “whether trial counsel substantially satisfied the requirement of putting the court on notice as to his concern.”⁸⁰ It’s best to commit the issue to writing through, for example, a motion in limine⁸¹ or a trial brief.⁸² If objection must be made orally, the court is a bit more generous, recognizing that “in the heat of a trial, counsel might not explain the evidentiary basis of his argument as thoroughly as might ideally be desired.”⁸³

Objections to Evidence

Adequately Presented

Amenable to Final Pretrial Determination

To excuse a party from having to contemporaneously object, the evidentiary issue must be “of a type that could be decided prior to trial.”⁸⁴ Not every issue will meet this standard, as

some evidentiary issues are akin to questions of law, and the decision to admit such evidence is not dependent upon the character of the other evidence admitted at trial. On

the other hand, some admission decisions are fact-bound

Definitive

Finally, the district court’s ruling must be “definitive.” Sometimes, a district court will make a “conditional” ruling on a motion in limine. For example, a party might move pretrial to exclude certain evidence as irrelevant. Since relevance is often hard to assess in the abstract, a district court may “conditionally deny” the motion and reserve a final ruling for trial. In this situation, the party must raise a contemporaneous objection when the evidence is actually introduced at trial. Failure to do so means forfeiture and plain-error review.⁸⁷

Jury Instructions

Objections to jury instructions in civil cases are governed by Federal Rule of Civil Procedure 51, which requires objections to be timely raised in the district court.⁸⁸ Under the Tenth Circuit’s jurisprudence, “the objection must proffer the same grounds raised on appeal with sufficient clarity to render the grounds obvious, plain, or unmistakable.”⁸⁹ If an objection is not properly preserved, Rule 51(d)(2) provides that “[a] court may consider a plain error in the instructions . . . if the error affects substantial rights.”⁹⁰

In criminal cases, objections to jury instructions must also be “timely and specific.”⁹¹ Failure to preserve an objection results in review for plain error under Federal Rule of Criminal Procedure 52(b).⁹² Whether civil Rule 51(d)(2) or criminal Rule 52(b) applies, the four-prong plain-error test is the same.⁹³

Preservation in Criminal Cases

Federal Rule of Criminal Procedure 52(b), which governs unpreserved errors in criminal cases, provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”⁹⁴ The Supreme Court’s 1993 decision in United States v. Olano⁹⁵ remains the principal precedent construing this rule. Under Olano, all forfeited errors in a criminal proceeding are subject to Rule 52(b), regardless of how serious the alleged error may be.⁹⁶ Although the Tenth Circuit has never so held, the Second Circuit has persuasively reasoned that plain-error review under Rule 52 should have less stringent application to sentencing errors than to errors occurring in the conduct of a jury trial.⁹⁷ The reason is the difference in judicial and social costs. “A resentencing is a brief event, normally taking less than a day and requiring the attendance of only the defendant, counsel, and court personnel.”⁹⁸ A second trial is much more costly in terms of “time, resources, and disruption in the lives of participants,” and so, to remedy unpreserved error, a court should order a second trial only “sparingly.”⁹⁹

When the issue on appeal concerns a criminal defendant’s waiver of a right rather than forfeiture of an error, Rule 52 does not apply, and special considerations come into play. Most of a criminal defendant’s rights are waivable, but some, like jury unanimity, are not.¹⁰⁰ Courts must also consider whether the waiver requires personal participation by the defendant, whether certain procedures are required for waiver, and whether the defendant’s choice must be particularly informed or voluntary.¹⁰¹

Waiving the Waiver, Forfeiting the Forfeiture

Waiver and forfeiture are substantive arguments that must be asserted on appeal if a party wants the court to consider them. An appellee’s failure to interpose a forfeiture defense when it clearly applies is itself a forfeiture, and the Tenth Circuit is more likely in that instance to “overlook” a preservation problem and reach the merits of an issue.¹⁰² This is known as “forfeiting the forfeiture,”¹⁰³ though the court sometimes (incorrectly) calls it “waiving the waiver.”¹⁰⁴

If true waiver has occurred, the Tenth Circuit has admonished that “a party that has waived a right is not entitled to appellate relief.”¹⁰⁵ Nonetheless, the court will reach the merits of a waived argument in criminal cases when the

government fails to invoke the waiver on appeal.¹⁰⁶ Whether the court would follow a similar path in civil cases is not clear. We have uncovered no civil case in the Tenth Circuit in which an appellee’s failure to invoke waiver on appeal led the court to take up an argument that the appellant had waived in the district court.¹⁰⁷

APPELLATE BRIEFING AND ORAL ARGUMENT Appellate briefs and oral argument are the primary vehicles

for presenting arguments to the federal courts of appeals, and they come with their own set of preservation rules.

Briefs and Oral Argument

Opening Brief

The appellant’s opening brief to the court of appeals is all- important. It is “the most highly structured of all the briefs,”¹⁰⁸ and it must contain, among other things, “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”¹⁰⁹ An argument or issue not raised in an opening brief is “deemed waived,”¹¹⁰ and the court “will not address it on the merits.”¹¹¹

The same is true if an argument is “inadequately presented” in an opening brief.¹¹² “[W]e expect attorneys appearing before this court to state the issues on appeal expressly and clearly, with theories adequately identified and supported with proper argument,” the Tenth Circuit has said.¹¹³ Thus, “[s]cattered statements,”¹¹⁴ “bald assertions,”¹¹⁵ and issues briefed “in a perfunctory manner,” without citations to authority or the record and without developed argumentation,¹¹⁶ are not enough to preserve an issue for appeal. As the Sixth Circuit has put it, “[i]t is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”¹¹⁷

Reply Brief

Generally, the court will not consider an argument raised for the first time in a reply brief.¹¹⁸ This would be unfair to both the appellee, who has no opportunity for a written response, and the court itself, which would “run the risk of an improvident or ill-advised opinion, given [its] dependence . . . on the adversarial process for sharpening the issues for decision.”¹¹⁹ Nonetheless, the Tenth Circuit “make[s] an exception when the new issue argued in the reply brief is offered in response to an argument raised in the appellee’s brief,”¹²⁰ especially if the appellee has posited an alternative ground for affirmance.¹²¹ And, of course,

if the argument pertains to (a lack of) subject-matter jurisdiction, the court is obliged to consider it.¹²²

It bears re-emphasis that, like most preservation rules, the rule against new arguments in reply is discretionary. Whether the court will consider such an argument depends on the complexity of the question,¹²³ the adequacy of the factual record, whether the parties addressed the issue in the district court,¹²⁴ and (perhaps) a need to avoid manifest injustice.¹²⁵

Oral Argument

Oral argument is an important part of the appellate process. “It contributes to judicial accountability, it guards against undue reliance upon staff work, and it promotes understanding in ways that cannot be matched by written communication.”126 It also “assures the litigant that his case has been given consideration by those charged with deciding it.”127 But oral argument is no place to “supplement” the record or the briefs.128 Indeed, Tenth Circuit “precedent holds that issues may not be raised for the first time at oral argument.”¹²⁹

The Rule of Richison: Appellant’s Affirmative Duty to Raise Plain Error

Richison v. Ernest Group, Inc.,¹³⁰ addressed an appellant who raised a new argument on appeal but failed to explain how it satisfied plain-error review. Refusing to consider the argument, the court held that “the failure to argue for plain error and its application on appeal . . . marks the end of the road for an argument for reversal not first presented to the district court.”¹³¹ Under Richison, the appellant has an affirmative duty to explain how a newly raised argument satisfies each prong of the plain- error test. The court will not, on its own, craft a plain-error argument for the appellant.¹³²

After Richison, it is not clear how an appellant fulfills her duty to raise plain error. Must she argue for plain-error review in her opening brief? Or is it sufficient to make the argument in a reply brief, or even at oral argument? So far, the Tenth Circuit has punted on these questions.¹³³

In our view, the appellant should not be required to articulate a plain-error argument in her opening brief. She should be permitted to raise it in a reply brief, and then only if it’s necessary. Recall that forfeiture is akin to an affirmative defense, and if an appellee doesn’t raise the forfeiture, the court is free to proceed to the merits of the issue.¹³⁴ A rule requiring the appellant to argue for plain error in her opening brief would put the cart before the horse, requiring the appellant to raise her own forfeiture at the outset. Plus, there are many reasons why the appellee may want to forego a forfeiture argument on appeal. Perhaps the appellee also wants the court to rule on the merits of the issue. Perhaps it’s not clear whether a forfeiture occurred, and the appellee prefers not to sidetrack the court into a tedious review of the record and arguments below. In any event, forfeiture is the appellee’s prerogative to raise. If the appellee

fails to raise forfeiture in her answer brief, the appellant need not address it. If, on the other hand, the appellee does raise it, the appellant should be permitted in her reply brief to address the forfeiture and articulate a plain-error argument.¹³⁵

Whether an appellant may invoke plain error for the first time at oral argument is not clear. The Tenth Circuit has, on at least one occasion, addressed a plain-error argument raised for the first time at oral argument, though it ultimately found no plain error.¹³⁶

III. CONCLUDING THOUGHTS

We began this article by noting the limited power of Article III courts to decide the issues the parties present for their review. The Tenth Circuit frequently reiterates that it depends heavily on the adversarial process to fully air the parties’ positions, sharpen the issues for review, and avoid ill-informed decisions.¹³⁷ As the court recently put it, “[i]n our adversarial system we don’t usually go looking for trouble but rely instead on the parties to identify the issues we must decide.”¹³⁸

Still, judicial decisionmaking isn’t like baseball arbitration—it’s not a binary either-or exercise.¹³⁹ A federal court of appeals isn’t limited to sifting the parties’ positions and selecting the position it likes best, nor is it bound by the parties’ framing of a particular issue. “[W]hen an issue or claim is properly before the court, the court is not limited to the

particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”¹⁴⁰ So, for example, even if the parties agree that a contract is unambiguous (but differ on its meaning), the court is free to decide otherwise.¹⁴¹ Or, where one party says a statute, contract, or case means “A” and the other says it means “B,” the court may decide that it means “C.”¹⁴² The court is more likely to address an issue not identified or briefed by parties if the issue is “antecedent to and ultimately dispositive of the dispute.”¹⁴³

The court’s inherent power to consider unraised issues only underscores the discretionary nature of appellate preservation rules. The rules are not mechanistic formulas. Rather, they “confer[] a discretion that may be exercised at any time, no matter what may have been done at some other time.”¹⁴⁴ The facts of individual cases matter.¹⁴⁵ Even stare decisis does not fully control a court’s power to consider unpreserved arguments on appeal.¹⁴⁶

Because preservation rules live in the realm of judicial discretion, counsel do well to remember the reasons behind the rules. As we have seen, the rules vindicate structural values, like respect for the division of labor between trial and appellate

courts, and prudential values, like allowing the court to avoid difficult or unresolved questions of law. Of course, considerations of fairness are paramount. On the one hand, preservation rules help avoid prejudice and unfair surprise to the parties. On the other hand, appellate courts must retain the power to correct plain errors that implicate a fundamental miscarriage of justice, even if the error was not noticed below.

Every case involving forfeiture, waiver, or some other aspect of preservation is an attempt to strike a sensible balance among these competing considerations. Although the legal formulas (like the four-part plain-error test) matter, perhaps more important is the court’s own sense of how these various considerations align with the facts and posture of a particular case. Prudent counsel, in her briefing and oral argument, will assist the court in striking the right judicial balance.

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Appellate Court May Not Invoke Plain Error to Increase a Sentence in the Absence of a Government Appeal: Greenlaw v. United States 1730

In Greenlaw v. United States, 554 U.S. 237 (2008), the defendant appealed from his sentence, and the government filed no cross-appeal.

The court of appeals rejected the defendant's challenge to his sentence and then proceeded sua sponle to determine whether the defendant's sentence was too low. Relying on the doctrine of plain error, the court of appeals entered an order increasing the defendant's sentence by 15 years. The Supreme Court, in an opinion by Justice Ginsburg for six Justices, held that the court of appeals could not use the plain error doctrine to increase a sentence from which the government had not appealed.

E. Disentitlement from the Right to Appeal 1731

The Fugitive Dismissal Rule: Ortega-Rodriguez v. United States 1731

The Court refused, however, to adopt a bright-line rule that pre appeal flight could never result in dismissal of an appeal. Justice Stevens noted that "some actions by a defendant, though they occur while his case is before the district court, might have an impact on the appellate process sufficient to warrant an appellate sanction." For example, the government may be prejudiced in locating witnesses for retrial if the appeal is significantly delayed; or the appellate court may be inconvenienced due to the inability to consolidate the fugitive defendant's appeal with other related appeals. The Court ruled that if such circumstances existed, "a dismissal rule could properly be applied."10 The Court remanded the case to determine whether the defendant's pre-appeal flight imposed consequences on the appellate system sufficient to justify dismissal of his appeal.