plain error in New Hampshire

2019See State v. Russell , 159 N.H. 475 , 490-92, 986 A.2d 515 (2009) (noting State's concession that first two prongs were met, assuming without deciding that third prong was met, and concluding that fourth prong was not satisfied); see also State v. Page , 171 N.H. ----, ----, 206 A.3d 936 , 2019 WL 1246444 (2019) (slip op. at 11) (where the defendant argued that the trial court erroneously instructed the jury as to the requisite mens rea for the offense, the court declined to address the first three prongs of the plain error test because it concluded that the fourth prong was not satisfied).

2019See State v. Russell , 159 N.H. 475 , 490-92, 986 A.2d 515 (2009) (noting State's concession that first two prongs were met, assuming without deciding that third prong was met, and concluding that fourth prong was not satisfied); see also State v. Page , 171 N.H. ----, ----, 206 A.3d 936 , 2019 WL 1246444 (2019) (slip op. at 11) (where the defendant argued that the trial court erroneously instructed the jury as to the requisite mens rea for the offense, the court declined to address the first three prongs of the plain error test because it concluded that the fourth prong was not satisfied).

2018“To reverse a trial court decision under the plain error rule: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation omitted).

2018“When the law is not clear at the time of trial and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error.” Id. (quotation omitted). “‘Plain’ as used in the plain error rule is synonymous with clear or, equivalently, obvious.” Id. (quotation omitted).

2020We have never extended this rationale to the offense of criminal restraint. “‘Plain’ as used in the plain error rule is synonymous with clear or, equivalently, obvious.” State v. Ortiz, 162 N.H. 585, 591 (2011) (quotation omitted).

2017See State v. Ortiz, 162 N.H. 585, 591 (2011) (holding that a purported error cannot be “plain” for purposes of the plain error rule when it raises an issue of first impression).

2015State v. Matey, 153 N.H. 263, 266 (2006).

2015“A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court.” Sup. Ct. R. 16–A. “However, the rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result.” Matey, 153 N.H. at 266 (brackets and quotations omitted).

2025According to the defendant, that answer “revived the previously dismissed indictment.” Because the defendant’s trial counsel did not object to the court’s answer, the defendant raises this argument as plain error. [¶10] The plain error rule is “used sparingly” and is “limited to those circumstances in which a miscarriage of justice would otherwise result.” State v. Rawnsley, 167 N.H. 8, 11 (2014).

2016“What is often overlooked in the rote application of the plain error standard is that, without objection, it is almost impossible to conclude that the trial court committed error at all.” Id. at 13 (quotation and brackets omitted). “[D]efense counsel can waive evidentiary restrictions, and often has legitimate strategic reasons for doing so.” Id. (quotation omitted).

2023See State v. Lopez, 156 N.H. 416, 425 (2007) (we will reverse a trial court for plain error if the error affected the outcome of the case).

2015As for the third prong of the plain error test, “to satisfy the burden of demonstrating that an error affected substantial rights, the defendant must demonstrate that the error was prejudicial, i. e., that it affected the outcome of the proceeding.” State v. Lopez, 156 N.H. 416, 425 (2007).

2024See Sup. Ct. R. 16-A; State v. Morrill, 169 N.H. 709, 720 (2017) (reviewing an unpreserved sufficiency of the evidence challenge under plain error); State v. Houghton, 168 N.H. 269, 272 (2015) (reviewing an unpreserved sufficiency of the evidence challenge under plain error); State v. Guay, 162 N.H. 375, 380 (2011) (reviewing an unpreserved sufficiency of the evidence challenge to an AFSA conviction under plain error); State v. Lopez, 162 N.H. 153, 159 (2011) (reviewing an unpreserved sufficiency of the evidence challenge under plain error). [¶9] Under the plain error rule, we may consider err

2017“Under the plain error rule, we may consider errors not 9 raised before the trial court.” State v. Houghton, 168 N.H. 269, 273 (2015) (quotation omitted).

2011Conversely, solicit does not mean ‘to ask.’ ” The defendant concedes that he may not have preserved this argument below, but asserts that “the trial court committed plain error in finding sufficient evidence.” Our plain error rule requires: “(1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” State v. MacInnes, 151 N.H. 732, 737 (2005).

2009See id. [9] On appeal, the defendant argues that the plain error was the trial court’s reliance upon impermissible factors in reaching a sentence.

2018This third prong of the plain error test “is similar to the harmless error analysis we use to evaluate preserved claims of error, with one important distinction: whereas the State bears the burden under harmless error analysis, the defendant bears the burden under the plain error test.” State v. Mueller, 166 N.H. 65, 70 (2014).

2017The plain error rule “is used sparingly, however, and is limited to those circumstances in which a miscarriage of justice would otherwise result.” Id. (quotation omitted).

2013State v. Taylor, 152 N.H. 719, 720 (2005).

2009The defendant argues that, based on our decisions in State v. Taylor, 152 N.H. 719, 720 (2005), and State v. Henderson, 154 N.H. 95, 96 (2006), the trial court’s error satisfies the final two prongs of the plain error rule.

2015State v. Guay, 164 N.H. 696, 703 (2013).

2014State v. Guay, 164 N.H. 696, 703 (2013).

2024See Sup. Ct. R. 16-A; State v. Morrill, 169 N.H. 709, 720 (2017) (reviewing an unpreserved sufficiency of the evidence challenge under plain error); State v. Houghton, 168 N.H. 269, 272 (2015) (reviewing an unpreserved sufficiency of the evidence challenge under plain error); State v. Guay, 162 N.H. 375, 380 (2011) (reviewing an unpreserved sufficiency of the evidence challenge to an AFSA conviction under plain error); State v. Lopez, 162 N.H. 153, 159 (2011) (reviewing an unpreserved sufficiency of the evidence challenge under plain error). [¶9] Under the plain error rule, we may consider err

2024See Sup. Ct. R. 16-A; State v. Guay, 162 N.H. 375, 380-84 (2011) (holding that defendant’s conviction on aggravated felonious sexual assault charge in the absence of sufficient evidence of penetration amounted to a plain error affecting the defendant’s substantial rights).

2011“When the law is not clear at the time of trial and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error.” Id. “ ‘Plain’ as used in the plain error rule is synonymous with clear or, equivalently, obvious.” Id. (quotation omitted).

2011“When the law is not clear at the time of trial and remains unsettled at the time of appeal, a decision by the trial court cannot be plain error.” Id. “ ‘Plain’ as used in the plain error rule is synonymous with clear or, equivalently, obvious.” Id. (quotation omitted).

2021State v. Euliano, 161 N.H. 601, 605 (2011); see Sup. Ct. R. 16-A. The rule, however, should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result.

2021State v. Euliano, 161 N.H. 601, 605 (2011); see Sup. Ct. R. 16-A. The rule, however, should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result.

2019See Randall v. Abounaja, 164 N.H. 506, 510 (2013); Sup. Ct. R. 16-A. “To find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Randall, 164 N.H. at 510 (quotation omitted).

2019See Randall v. Abounaja, 164 N.H. 506, 510 (2013); Sup. Ct. R. 16-A. “To find plain error: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Randall, 164 N.H. at 510 (quotation omitted).

2024To reverse a trial court decision under the plain error rule: (1) there must be an error; (2) the error must be plain; (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” State v. Ruiz, 170 N.H. 553, 566 (2018) (quotations omitted).

2024State v. Ruiz, 170 N.H. 553, 566 (2018); see Sup. Ct. R. 16-A. The plain error rule allows us to consider issues that were not raised in the trial court.

2022See Sup. Ct. R. 16-A. “The plain error rule allows us to consider errors not brought to the attention of the trial court.” Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 581 (2018); see Robinson v. Washington Metro.

2022See Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018) (“[A]lthough the plain error rule allows us to consider errors not brought to the attention of the trial court, see Sup. Ct. R. 16-A, in this case, we exercise our discretion to consider plain error only when the defendants specifically argue under that rule.”).

2024“A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court . . . .” Sup. Ct. R. 16-A. “The rule should be used sparingly, its use limited to those circumstances in which a miscarriage of justice would otherwise result.” State v. Lamy, 158 N.H. 511, 524 (2009) (quotation omitted).

2009State v. Lamy, 158 N.H. 511, 524 (2009).

2022Ordinarily, “the plain error rule is not met when the case presents a question of first impression.” Aranosian Oil Co. v. State of N.H., 168 N.H. 322, 331 (2015).

2022Ordinarily, “the plain error rule is not met when the case presents a question of first impression.” Aranosian Oil Co. v. State of N.H., 168 N.H. 322, 331 (2015).

2018See State v. Cooper, 168 N.H. 161, 167-71 (2015) (discussing and applying the plain error rule in the context of prosecutorial statements).

2018State v. Cooper, 168 N.H. 161, 168 (2015).

2017See State v. Moussa, 164 N.H. 108, 129 (2012).

2014“The plain error rule allows us to exercise our discretion to correct errors not raised before the trial court.” State v. Moussa, 164 N.H. 108, 118 (2012) (quotation omitted); Sup. Ct. R. 16-A (“A plain error that affects substantial rights may be considered even though it was not brought to the attention of the trial court or the supreme court.”).

2015State v. Almodovar, 158 N.H. 548, 553 (2009).

2010State v. Almodovar, 158 N.H. 548, 553 (2009).

2010The State further argues that the change was not prejudicial because the defendant did not assert “an alibi defense” or other “defense based on lack of opportunity.” The plain error rule allows us to exercise our discretion to correct errors not raised in the trial court that affect “substantial rights.” Sup. Ct. R. 16-A. To find plain error: “(1) there must be error; (2) the error must be plain[;] (3) the error must affect substantial rights; and (4) the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” State v. Hancock, 156 N.H. 301, 303 (2007

2008See Sup. Ct. R. 16-A. Before we may do so: “(1) there must be error; (2) the error must be plain; [and] (3) the error must affect substantial rights.” State v. Hancock, 156 N.H. 301, 303 (2007) (quotation omitted).

2009See Johnson, 520 U.S. at 470 (“Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” (quotation omitted)).

2006I also recognize that “it is enough that an error be ‘plain’ at the time of appellate consideration,” Johnson v. United States, 520 U.S. 461, 468 (1997), and do not suggest that legal questions must have been the subject of appellate review in order to trigger a plain error analysis.

2015See id.

2006Id.

2008See id,.; State v. Emery, 152 N.H. 783, 786 (2005).

2006Generally, for a plaintiff to satisfy the burden of proving that an error affected the substantial rights of the plaintiff, he or she “must demonstrate that the error was prejudicial — that it affected the outcome of the proceeding.” Emery, 152 N.H. at 787 .

2021See id.

2018Clark &Lavey Benefits Solutions , 157 N.H. at 225 , 949 A.2d 133 .

2008Cloutier v. City of *138 Berlin, 154 N.H. 13, 25 , 907 A.2d 955 (2006).

2008Cloutier v. City of Berlin, 154 N.H. 13, 25 (2006).