plain error in Wisconsin

2026A plain error is one that is “so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Jorgensen, 2008 WI 60, ¶21 , 310 Wis. 2d 138 , 754 N.W.2d 77 .

2026The plain error doctrine should be applied “sparingly” and only when the defendant meets its burden of showing the error is “fundamental, obvious, and substantial[.]” Jorgensen, 310 Wis. 2d 138, ¶¶21, 23 .

2009Id. "[WJhere a basic constitutional right has not been extended to the accused," the plain error doctrine should be invoked.

2008Id. (citing Virgil v. State, 84 Wis.2d 166, 195 , 267 N.W.2d 852 (1978)) (Beilfuss, C.J., concurring); "Wisconsin courts have consistently used this constitutional error standard in determining whether to invoke the plain error rule." State v. King, 205 Wis.2d 81, 91 , 555 N.W.2d 189 (Ct.App.1996) (citing to a number of Wisconsin cases applying the plain error doctrine). ¶ 22 However, "`the existence of plain error will turn on the facts of the particular case.'" Mayo, 301 Wis.2d 642, ¶ 29 , 734 N.W.2d 115 (citing Virgil, 84 Wis.2d at 190-91 , 267 N.W.2d 852 ).

2024“Plain error is ‘error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.’” State v. Jorgensen, 2008 WI 60, ¶21 , 310 Wis. 2d 138 , 754 N.W.2d 77 (quoting State v. Sonnenberg, 117 Wis. 2d 159, 177 , 344 N.W.2d 95 (1984)).

2024“Plain error is ‘error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.’” State v. Jorgensen, 2008 WI 60, ¶21 , 310 Wis. 2d 138 , 754 N.W.2d 77 (quoting State v. Sonnenberg, 117 Wis. 2d 159, 177 , 344 N.W.2d 95 (1984)).

2024See State v. Pettit, 171 Wis. 2d 627, 646-47 , 492 N.W.2d 633 (Ct. App. 1992) (we may decline to address arguments that are undeveloped). 8 No. 2023AP1431-CR ¶16 The plain error doctrine is recognized in WIS.

2024See State v. Pettit, 171 Wis. 2d 627, 646-47 , 492 N.W.2d 633 (Ct. App. 1992) (we may decline to address arguments that are undeveloped). 8 No. 2023AP1431-CR ¶16 The plain error doctrine is recognized in WIS.

2026This argument also fails because Fuller did not prove that the juror was subjectively biased. ¶18 “Under the doctrine of plain error, an appellate court may review error that was otherwise waived by a party’s failure to object properly or preserve the error for review as a matter of right.” State v. Mayo, 2007 WI 78, ¶29 , 301 Wis. 2d 642 , 734 N.W.2d 115 ).

2026This argument also fails because Fuller did not prove that the juror was subjectively biased. ¶18 “Under the doctrine of plain error, an appellate court may review error that was otherwise waived by a party’s failure to object properly or preserve the error for review as a matter of right.” State v. Mayo, 2007 WI 78, ¶29 , 301 Wis. 2d 642 , 734 N.W.2d 115 ).

2024The forfeiture rule “gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection; encourages attorneys to diligently prepare for and conduct trials; and prevents attorneys from ‘sandbagging’ opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal.” Id. 7 No. 2023AP1975 ¶18 However, under the plain error doctrine, an appellate court may review evidentiary errors that were not objected to below.

2024See State v. Ndina, 2009 WI 21, ¶30 , 315 Wis. 2d 653 , 761 N.W.2d 612 . ¶13 To avoid forfeiture, Pierce invokes the plain error doctrine.

2022Accordingly, “a court should exercise its discretionary authority under the plain error doctrine only when such errors ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’” State v. King, 205 Wis. 2d 81, 96 , 555 N.W.2d 189 (Ct. App. 1996) (quoting with approval United States v. Olano, 507 U.S. 725, 736 (1993), which articulates the plain error doctrine under an analogous federal rule of criminal procedure).5 ¶18 As the first step in a plain-error analysis, the appellant6 must identify an error that is “fundamental, obvious, and substantial.” Jorgensen, 310

2022That unobjected-to hearsay evidence was used to prove dangerousness is not constitutionally equivalent to H.V.’s being committed without sufficient evidence of dangerousness. ¶23 Moreover, as previously noted, the plain error doctrine is discretionary: a court should invoke the doctrine “only when such errors ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’” King, 205 Wis. 2d at 96 (quoting Olano, 507 U.S. at 736 ).

1996See, e.g., State v. Kruzycki, 192 Wis. 2d 509, 527 , 531 N.W.2d 429, 436 (Ct. App. 1995); State v. Wiese, 162 Wis. 2d 507, 515 , 469 N.W.2d 908, 911 (Ct. App. 1991); State v. Romero, 147 Wis. 2d 264 , 275 n.3, 432 N.W.2d 899, 904 (1988); State v. Gustafson, 119 Wis. 2d 676, 688 , 350 N.W.2d 653 , 659 (1984).

1996See, e.g., State v. Kruzycki, 192 Wis. 2d 509, 527 , 531 N.W.2d 429, 436 (Ct. App. 1995); State v. Wiese, 162 Wis. 2d 507, 515 , 469 N.W.2d 908, 911 (Ct. App. 1991); State v. Romero, 147 Wis. 2d 264 , 275 n.3, 432 N.W.2d 899, 904 (1988); State v. Gustafson, 119 Wis. 2d 676, 688 , 350 N.W.2d 653 , 659 (1984).

2024See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190 , ¶8 n.1, 286 Wis. 2d 774 , 703 N.W.2d 707 (court of appeals decides cases on the narrowest possible grounds). 19 No. 2022AP1738-CR specific alleged events at the time [Lucy] testified those events occurred.”13 Therefore, he concludes that defense counsel’s failure to object to the comments during the State’s closing argument “objectively demonstrates a reasonable probability” of “a different outcome in light of the evidentiary deficiencies and inconsistencies in the State’s case.” ¶45 Defense counsel’s failure to object to t

2024See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190 , ¶8 n.1, 286 Wis. 2d 774 , 703 N.W.2d 707 (court of appeals decides cases on the narrowest possible grounds). 19 No. 2022AP1738-CR specific alleged events at the time [Lucy] testified those events occurred.”13 Therefore, he concludes that defense counsel’s failure to object to the comments during the State’s closing argument “objectively demonstrates a reasonable probability” of “a different outcome in light of the evidentiary deficiencies and inconsistencies in the State’s case.” ¶45 Defense counsel’s failure to object to t

2020STAT. § 901.03(4); Schumacher, 144 Wis. 2d at 402 (concluding that the plain error doctrine has been limited to evidentiary issues). 14 Nos. 2019AP1753-CR 2019AP1754-CR presumption by showing that the appearance of bias reveals a great risk of actual bias.” State v. Herrmann, 2015 WI 84, ¶3 , 364 Wis. 2d 336 , 867 N.W.2d 772 .

1997See State v. Schumacher, 144 Wis. 2d 388, 402 , 424 N.W.2d 672, 677 (1988); Interest of C.E.W., 124 Wis. 2d 47, 55 , 368 N.W.2d 47, 51-52 (1985).

2019See id. ¶11 In J.M.J.'s view, the Department violated the parties' oral agreement during its questioning of Dr. Valenti-Hein.

2019See id. 6 The Department summarily asserts that J.M.J. forfeited the issue of prosecutorial misconduct for appellate review by raising the issue only at sidebar.

1984United States v. Vaughan, 443 F.2d 92, 95 (2d Cir. 1971).” 84 Wis. 2d at 192 .

1984United States v. Vaughan, 443 F.2d 92, 95 (2d Cir. 1971)." 84 Wis. 2d at 192.

2024“To qualify for this doctrine’s application, however, the error must be obvious and substantial[,]” and “so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Bell, 2018 WI 28, ¶12 , 380 Wis. 2d 616 , 909 N.W.2d 750 (alteration in Bell; internal quotation marks and quoted source omitted). ¶19 “Courts should use the plain error doctrine sparingly,” and it may be appropriate when “‘a basic constitutional right has not been extended to the accused.’” Jorgensen, 310 Wis. 2d 138, ¶21 (quoted source omitted).

2024Mayo, 301 Wis. 2d 642, ¶28 ; see also Bell, 380 Wis. 2d 616, ¶8 (explaining that where the plain error involves the violation of a constitutional right, the issue presents a question of law that we review de novo). ¶25 Aside from its arguments regarding Melissa’s testimony and its harmless error analysis, the State does not appear to specifically dispute that the rape shield statute violation in this case was fundamental, obvious, and substantial.

2021Davidson, 236 Wis. 2d 537, ¶88 . ¶9 Having considered the prosecutor’s statements at issue, we conclude they do not rise to the level of plain error.

2008Id., ¶¶ 49-52. ¶ 26 In State v. Davidson, 2000 WI 91, ¶¶ 81-89 , 236 Wis.2d 537 , 613 N.W.2d 606 , this court analyzed whether a prosecutor's statements during closing arguments required reversal under the plain error doctrine.

1990Even if this court were to review the unobjected to evidence under the plain error doctrine, see C.E.W., 124 Wis. 2d at 55 n.4, 368 N.W.2d at 51 n.4, her claim appears meritless. *117 We have examined each of R.P.'s record references to the testimony in question, and it is apparent that in each instance except one, the witnesses were describing the likelihood of serious emotional or physical damage to the child as required by the ICWA.

1990Even if this court were to review the unobjected to evidence under the plain error doctrine, see C.E.W., 124 Wis. 2d at 55 n.4, 368 N.W.2d at 51 n.4, her claim appears meritless. *117 We have examined each of R.P.'s record references to the testimony in question, and it is apparent that in each instance except one, the witnesses were describing the likelihood of serious emotional or physical damage to the child as required by the ICWA.

1988Under this doctrine, "errors in instruction may be reviewed on appeal, even on the court’s own motion, where the error is so plain or fundamental as to affect the substantial rights of the defendant.” Claybrooks v. State, 50 Wis. 2d 79, 84-85 , 183 N.W.2d 139 (1971).

1988Under this doctrine, "errors in instruction may be reviewed on appeal, even on the court’s own motion, where the error is so plain or fundamental as to affect the substantial rights of the defendant.” Claybrooks v. State, 50 Wis. 2d 79, 84-85 , 183 N.W.2d 139 (1971).

1996"The plain-error rule is reserved for cases in which it is likely that the error denied the defendant a basic constitutional right." Id.

1996"The plain-error rule is reserved for cases in which it is likely that the error denied the defendant a basic constitutional right." Id.