plain error in Tennessee

2026To obtain relief under this doctrine, the defendant bears the burden of persuading this Court “that the trial court committed plain error” and that the error was of sufficient magnitude “that it probably changed the outcome of the trial.” Bledsoe, 226 S.W.3d at 354 (Tenn. 2007) (first quoting State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim.

2026Plain error relief is “limited to errors that had an unfair prejudicial impact which undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim.

2026Plain error relief should be “sparingly exercised[,]” see State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), and is only appropriate for errors that are “especially egregious in nature, striking at the very heart of the fairness of the judicial proceeding,” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).

2026Plain error review should be “sparingly exercised[,]” see State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), and confined to errors that are “especially egregious in nature, striking at the very heart of the fairness of the judicial proceeding,” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).

2026As we have recognized, “relief under the plain error doctrine is unavailable when a defendant’s failure to object results from a trial choice that fits within counsel’s broader defense strategy.” Id. (citing State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000)).

2026An issue rises to the level of plain error only when all five of the following factors are met: (1) the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary “to do substantial justice.” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim App. 1994)).

2026Plain error review should be “sparingly exercised[,]” see State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), and confined to errors that are “especially egregious in nature, striking at the very heart of the fairness of the judicial proceeding,” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).

2026To obtain relief under this doctrine, the defendant bears the burden of persuading this Court “that the trial court committed plain error” and that the error was of sufficient magnitude “that it probably changed the outcome of the trial.” Bledsoe, 226 S.W.3d at 354 (Tenn. 2007) (first quoting State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim.

2024It is also a defendant’s “burden to persuade an appellate court that the trial court committed plain error.” Id. at 355 (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[A] defendant’s failure to [even] request this relief weighs against any such consideration on our own.” Thompson, 2023 WL 4552193 , at *5 (citing State v. Cornwell, No. E2011-00248-CCA-R3-CD, 2012 WL 5304149 , at *18 (Tenn. Crim.

2024“It is the accused’s burden to persuade an appellate court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). “[T]he presence of all five factors must be established by the record before this Court will recognize the existence of plain error, and complete consideration of all the factors is not necessary when it is clear from the record that at least one of the factors cannot be established.” Smith, 24 S.W.3d at 283 .

2026The doctrine of plain error applies when all five of the following factors have been established: (a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused must not have waived the issue for tactical reasons; and (e) consideration of the error must be "necessary to do substantial justice." State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d 355,360 (Tenn. 2003)) (internal brackets omitted).

2025The doctrine of plain error applies when all five of the following factors have been established: (a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused must not have waived the issue for tactical reasons; and (e) consideration of the error must be “necessary to do substantial justice.” State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d 355, 360 (Tenn. 2003)) (internal brackets omitted).

2026To succeed on a claim that the trial court committed plain error by not instructing the jury on a lesser-included offense, the defendant bears the burden of showing “a reasonable probability that a reasonable jury would have convicted the defendant of the lesser-included offense instead of the charged offense.” State v. Martin, 505 S.W.3d 492, 505 (Tenn. 2016) (internal quotation and citation omitted).

2025All five factors must be established before this court will recognize plain error and “‘complete consideration of all the factors is not necessary when it is clear from the record that at least one of the factors cannot be established.’” State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016) (quoting Smith, 24 S.W.3d at 283 ). “‘When asserting plain error, the defendant bears the burden of persuading the appellate court that the trial court committed plain error and that the error was of sufficient magnitude that it probably changed the outcome of the trial.’” Id. at 505 (quoting State v. Smith, 49

2005Plain error is especially egregious error that strikes at the “fairness, integrity, or public reputation of judicial proceedings.” Momon v. State, 18 S.W.3d 152, 157 (Tenn.1999) (quoting Manning v. State, 500 S.W.2d 913, 914 (Tenn.1973)); see also State v. Wooden, 658 S.W.2d 553, 559 (Tenn.Crim.App.1983).

2000Plain error is especially egregious error that strikes at the "fairness, integrity, or public reputation of judicial proceedings." See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim.

2025All five factors must be established before this court will recognize plain error and “‘complete consideration of all the factors is not necessary when it is clear from the record that at least one of the factors cannot be established.’” State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016) (quoting Smith, 24 S.W.3d at 283 ). “‘When asserting plain error, the defendant bears the burden of persuading the appellate court that the trial court committed plain error and that the error was of sufficient magnitude that it probably changed the outcome of the trial.’” Id. at 505 (quoting State v. Smith, 49

2025All five factors must be established before this court will recognize plain error and “‘complete consideration of all the factors is not necessary when it is clear from the record that at least one of the factors cannot be established.’” State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016) (quoting Smith, 24 S.W.3d at 283 ). “‘When asserting plain error, the defendant bears the burden of persuading the appellate court that the trial court committed plain error and that the error was of sufficient magnitude that it probably changed the outcome of the trial.’” Id. at 505 (quoting State v. Smith, 49

2021“Plain error review is a path defendants are permitted to pursue on appeal, and the failure to properly raise an issue in a motion for new trial does not entirely close the door on a defendant’s ability to obtain relief on direct appeal.” Howard, 604 S.W.3d at 63, n.7. “[T]he failure to have plenary review of certain issues does not result in a complete failure to subject the State’s case to adversarial testing as the defendant is still permitted to seek plain error review on additional issues not properly raised in a motion for new trial.” Id. at 62; see also State v. Hatcher, 310 S.W.3d 788,

2019The doctrine of plain error only applies when all five 11 of the following factors have been established: (1) the record clearly establishes what occurred in the trial court; (2) the error breached a clear and unequivocal rule of law; (3) the error adversely affected a substantial right of the complaining party; (4) the error was not waived for tactical reasons; and (5) substantial justice is at stake; that is, the error was so significant that it “probably changed the outcome of the trial.” State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 274, 282-83 (Tenn

2025“When asserting plain error, the defendant bears the burden of persuading the appellate court that the trial court committed plain error and that the error was of sufficient magnitude that it probably changed the outcome of the trial.” Smith, 492 S.W.3d at 232 -33 (citing State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010)).

2022The State, on the other hand, relies upon the well-settled principle that when a defendant seeks relief as a matter plain error, “the defendant bears the burden of persuading the appellate court that the trial court committed plain error and that the error was of sufficient magnitude that it probably changed the outcome of the trial.” See State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010).

2026See State v. Minor, 546 S.W.3d 59, 70 (Tenn. 2018) (holding that application of a new constitutional rule to cases pending on direct review when the new rule is announced is subject to “existing jurisprudential principles, such as appellate review preservation requirements and the plain error doctrine” and that “if a defendant fails to comply with appellate review preservation requirements, an appellate court must utilize the plain error doctrine rather than plenary appellate review when applying a new rule”). -9- According to the transcript, the parties stipulated “that the report from the NM

2026The United States Supreme Court’s decision in Erlinger, 602 U.S. 821 , was issued on June 2, 2024. - 15 - concepts, such as appellate review preservation requirements and the plain error doctrine.” State v. Minor, 546 S.W.3d 59, 62 (Tenn. 2018).

2025“To rise to the level of plain error, [a]n error would have to [be] especially egregious in nature, striking at the very heart of the fairness of the judicial proceeding.” State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016) (alterations in original) (internal quotation marks omitted) (quoting State v. Banks, 271 S.W.3d 90, 127 (Tenn. 2008)).

2024In his reply brief, Defendant argued the plain error factors had been met: “The record is clear, there was no tactical reason not to raise the constitutional issue (given that other arguments for admission were being made), the scope of the constitutional protection is apparent as is the effect on [Defendant’s] rights, and substantial justice requires review by this [c]ourt.” “When a defendant raises an issue for the first time on appeal, the issue will generally be deemed waived and will be considered only within the limited parameters of an appellate court’s discretionary plain error review.

2026“Whether the plain error doctrine has been satisfied is a question of law which we review de novo.” State v. Knowles, 470 S.W.3d 416, 423 (Tenn. 2015).

2026“Whether the elements of the plain error doctrine have been satisfied is a question of law.” Linville, 647 S.W.3d at 354 (quoting State v. Knowles, 470 S.W.3d 416, 423 (Tenn. 2015)).

2022Additionally, the Tennessee Supreme Court has held that the plain error rule under Tennessee Rule of Appellate Procedure 36(b), which allows an appellate court to review issues that were not otherwise properly preserved for appeal, “may not be applied in post-conviction proceedings to grounds that would otherwise be deemed either waived or previously determined.” Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009) (citing State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000)).

2020See State v. West, 19 S.W.3d 753 , 756–57 (Tenn. 2000) (holding that the statutory provisions of the Act “effectively prevent the application of [the plain error rule]”).

2026See Tenn. Code Ann. § 40-18-110 (b) (“In the absence of a written request from a party specifically identifying the particular lesser included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury on any lesser included offense or offenses, but no party shall be entitled to any lesser included offense charge.”); State v. Fayne, 451 S.W.3d 362, 371 (Tenn. 2014) (stating that failure to request a lesser included offense instruction in writing does not prohibit “consideration of the issue under the doctrine of plain error”); see also State v. Linville, 647

2024State v. Fayne, 451 S.W.3d 362, 372 (Tenn. 2014) (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). “[A]n error would have to [be] especially -7- egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to rise to the level of plain error.” Fayne, 451 S.W.3d at 372 (citation omitted) (alterations in Fayne).

2026Our supreme court has determined that “issues not addressed in the post-conviction court will generally not be addressed on appeal” and that the plain error doctrine “may not be applied in post-conviction proceedings to grounds that would otherwise be deemed . . . waived or previously determined.” Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005); Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009).

2025Our supreme court has determined that “issues not addressed in the post-conviction court will generally not be addressed on appeal” and that the plain error doctrine “may not be applied in post-conviction proceedings to grounds that would otherwise be deemed waived or previously determined.” Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005); Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009).

2026Even if all five factors are present, “the plain error must be of such a great magnitude that it probably changed the outcome of the trial.” Id. (quoting Adkisson, 899 S.W.2d at 642 ).

2026App. P. 36(b); State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (noting that “the discretionary authority to invoke the plain error doctrine should be ‘sparingly exercised’”).

2026Tennessee Rule of Appellate Procedure 36(b) states in part that “[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.” It is well-settled that the discretionary authority to invoke the plain error doctrine should be “sparingly exercised,” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), because “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as ar

2025Tennessee Rule of Appellate Procedure 36(b), the plain error doctrine, states in part that “[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.” It is well-settled that the discretionary authority to invoke the plain error doctrine should be “sparingly exercised,” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), because “appellate courts do not sit as self-directed boards of legal inquiry and rese

2021Plain error has been characterized as error that is obvious or egregious and has been “limited to those [errors] so objectionable that they should have been apparent to the trial judge or that strike at the fundamental fairness, honesty or public reputation of the trial.” United States v. Rodriguez, 882 F.2d 1059, 1064 (6th Cir. 1989).

2016Plain error has been characterized as error that is obvious or egregious and has been “limited to those [errors] so objectionable that they should have been apparent to the trial judge or that strike at the fundamental fairness, honesty or public reputation of the trial.” United States v. Rodriguez, 882 F.2d 1059, 1064 (6th Cir. 1989).

2026Tennessee Rule of Appellate Procedure 36(b) states in part that “[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.” It is well-settled that the discretionary authority to invoke the plain error doctrine should be “sparingly exercised,” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), because “appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as ar

2025Tennessee Rule of Appellate Procedure 36(b), the plain error doctrine, states in part that “[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.” It is well-settled that the discretionary authority to invoke the plain error doctrine should be “sparingly exercised,” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007), because “appellate courts do not sit as self-directed boards of legal inquiry and rese

2025An appellate court may review an unpreserved error pursuant to the plain error doctrine, if the defendant bears his or her burden to show that all five prerequisites are satisfied: (1) The record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice. -6- State v. Dotson, 450 S.W.3d 1, 49 (Tenn. 2014) (quoting State v. Gomez, 239 S.W.3d 733, 737

2024However, an appellate court may review an unpreserved error pursuant to the plain error doctrine, if the defendant bears their burden to show that all five prerequisites are satisfied: (1) The record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice. - 19 - State v. Dotson, 450 S.W.3d 1, 49 (Tenn. 2014) (quoting State v. Gomez, 239 S.W.3d 73

2025An appellate court may review an unpreserved error pursuant to the plain error doctrine, if the defendant bears his or her burden to show that all five prerequisites are satisfied: (1) The record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice. -6- State v. Dotson, 450 S.W.3d 1, 49 (Tenn. 2014) (quoting State v. Gomez, 239 S.W.3d 733, 737

2024However, an appellate court may review an unpreserved error pursuant to the plain error doctrine, if the defendant bears their burden to show that all five prerequisites are satisfied: (1) The record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice. - 19 - State v. Dotson, 450 S.W.3d 1, 49 (Tenn. 2014) (quoting State v. Gomez, 239 S.W.3d 73

2026“Plain error review ends where trial strategy begins.” Id.

2025As our courts have long cautioned, the plain error rule does not exist to “provide a second bite at the apple for a defendant whose deliberate trial strategy failed.” Walker, 910 S.W.2d at 400 (Anderson, C.J., concurring).

2024The State argues that Defendant has waived consideration of the issue by his failure to object to the comments at trial and that none of the comments rise to the level of plain error. “[I]t is incumbent upon defense counsel to object contemporaneously whenever it deems the prosecution to be making improper argument[,]” as “[a] contemporaneous objection provides the trial court with an opportunity to assess the State’s argument and to caution the prosecution and issue a curative instruction to the jury if necessary.” State v. Jordan, 325 S.W.3d 1, 57-58 (Tenn. 2010) (footnote omitted).

2024Because it is “incumbent upon defense counsel to object contemporaneously whenever it deems the prosecution to be making improper argument[,]” as “[a] contemporaneous objection provides the trial court with an opportunity to assess the State’s argument and to caution the prosecution and issue a curative instruction to the jury if necessary.” State v. Jordan, 325 S.W.3d 1, 57-58 (Tenn. 2010).

2019State v. Gann, 251 S.W.3d 446, 458 (Tenn. Crim.

2017State v. Gann, 251 S.W.3d 446, 458 (Tenn. Crim.

2018Griffith 479 U.S. at 328, 107 S.Ct. 708 ; State v. Gomez , 163 S.W.3d 632 , 645 (Tenn. 2005), cert. granted , judgment vacated on other grounds , by Gomez v. Tennessee , 549 U.S. 1190 , 127 S.Ct. 1209 , 167 L.Ed.2d 36 (2007) (hereinafter " Gomez I "); see also Knowles , 470 S.W.3d at 423 (applying the plain error doctrine "because the defendant did not properly preserve the election issue for plenary appellate review"); Bishop , 431 S.W.3d at 43-44 (holding that the Court of Criminal Appeals erred by failing to apply the plain error doctrine when it addressed an issue that the defendant had no

2018See, e.g. , Henderson , 568 U.S. at 272 , 133 S.Ct. 1121 (explaining that "[e]ven where a new rule of law is at issue," the federal circuit courts of appeal may only "overlook a failure to object" if all of the elements of the plain error doctrine are satisfied); Davis v. United States , 564 U.S. 229 , 243, 131 S.Ct. 2419 , 180 L.Ed.2d 285 (2011) (explaining that "retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief" and stating that Griffith merely lifted "what would otherwise be a categorical

2017In 1991, when Parton was decided, the plain error analysis was based on “the facts and circumstances of the particular case.” State v. Ogle, 666 S.W.2d 58, 61 (Tenn. 1984).

2017In 1991, when Parton was decided, the plain error analysis was based on “the facts and circumstances of the particular case.” State v. Ogle, 666 S.W.2d 58, 61 (Tenn. 1984).

2024In his reply brief, Defendant argued the plain error factors had been met: “The record is clear, there was no tactical reason not to raise the constitutional issue (given that other arguments for admission were being made), the scope of the constitutional protection is apparent as is the effect on [Defendant’s] rights, and substantial justice requires review by this [c]ourt.” “When a defendant raises an issue for the first time on appeal, the issue will generally be deemed waived and will be considered only within the limited parameters of an appellate court’s discretionary plain error review.

2010The Faulkner court, in performing a plain error analysis, said, “We are not convinced, however, that the inclusion of . . . language [inapt per Page] is an error of constitutional dimension when the instruction also includes the correct result-of-conduct definition.” 154 S.W.3d at 58-59 .

2026Our supreme court has determined that “issues not addressed in the post-conviction court will generally not be addressed on appeal” and that the plain error doctrine “may not be applied in post-conviction proceedings to grounds that would otherwise be deemed . . . waived or previously determined.” Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005); Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009).

2025Our supreme court has determined that “issues not addressed in the post-conviction court will generally not be addressed on appeal” and that the plain error doctrine “may not be applied in post-conviction proceedings to grounds that would otherwise be deemed waived or previously determined.” Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005); Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009).