plain error in District of Columbia

2024But our court’s en banc decision in Watts rejected such a reading of Rule 30, concluding that, notwithstanding the rule’s categorical language, the plain error doctrine took precedence and allowed for review of unpreserved instructional claims. 362 A.2d at 708 & n.3 (recognizing Rule 30’s instruction that “[n]o party could assign . . . error” to a jury instruction unless they objected before the jury retired to deliberate, but concluding that “[n]onetheless, where there is plain error concerning instructions such an error is subject to review”); see also Allen, 495 A.2d at 1151-52 (holding tha

2024See, e.g., Watts, 362 A.2d at 708 & n.3 (concluding that, despite the categorical language in Rule 30 limiting review of untimely claims, the plain error standard in Rule 52(b) allowed for review of unpreserved instructional claims on appeal); Allen, 495 A.2d at 1151-52 (holding that plain error review applied to unpreserved claims of error in jury instructions pursuant to Rule 30); Jones, 527 U.S. at 388 (acknowledging that “[w]hile Rule 30 could be read literally to bar any review of [an unpreserved] claim of error,” courts may still review unpreserved instructional errors for plain error un

2019Plain error consists of four components: (1) an "error"; (2) that is "plain"; (3) "affects [appellant's] substantial rights"; and (4) "seriously affects the fairness, integrity or public reputation of judicial proceedings." Olano v. United States , 507 U.S. 725 , 732, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (quoting United States v. Young , 470 U.S. 1 , 15, 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985) ) (alterations and internal quotations omitted).

2019Plain error consists of four components: (1) an "error"; (2) that is "plain"; (3) "affects [appellant's] substantial rights"; and (4) "seriously affects the fairness, integrity or public reputation of judicial proceedings." Olano v. United States , 507 U.S. 725 , 732, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (quoting United States v. Young , 470 U.S. 1 , 15, 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985) ) (alterations and internal quotations omitted).

2013In other words, under the plain error standard, “reversal ‘is justified only in exceptional circumstances where a miscarriage of justice would otherwise result.’ ” Washington, supra, 760 A.2d at 197 (quoting Harris v. United States, 602 A.2d 154, 159 (D.C.1992)).

2013“Even if all three of these conditions are met, this court will not reverse unless (4) ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Davis, 984 A.2d at 1259; see also Harris v. United States, 602 A.2d 154, 159 (D.C.1992) (en banc) (quoting United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982)) ( ‘It is well settled that reversal under the plain error doctrine is justified only in exceptional circumstances where ‘a miscarriage of justice would otherwise result.’ ”).

2025See Alleyne v. United States, 327 A.3d 472 , 484 (D.C. 2024) (“The plain-error test imposes a ‘formidable’ burden on appellants who advance unpreserved claims.” (quoting Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992))) (emphasis added); see also Lowery v. United States, 3 A.3d 1169, 1177 (D.C. 2010) (declining to remand for evidentiary hearing on unpreserved issue where that “would violate the plain error rule and our precedent by shifting from the appellant the burden of demonstrating plain error on the existing record”).

2022It is Smith’s burden to demonstrate that he satisfies each prong of the plain error test, see Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992), yet he has not even made an effort to do so, beyond arguing error.

2006“Under the plain error standard, ‘the error must be: (1) obvious or readily apparent, and clear under current law; and (2) so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.’ ” Coates v. United States, 705 A.2d 1100, 1104 (D.C.1998) (citations omitted).

2004While Bradley’s failure to raise these constitutional claims in the trial court would normally result in our reviewing them under a plain error standard, see Coates v. United States, 705 A.2d 1100, 1104 (D.C.1998), we have decided to review his contentions in a more plenary fashion.

2016The Fairness, Integrity, or Public Reputation of the Trial If the first three parts of the plain error test are. satisfied, we “exercise [our] discretion to correct the error” when the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Thomas, 914 A.2d at 22 (quoting Johnson v. United States, 520 U.S. 461, 470 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997)).

2016In Thomas v. United States and Otts v. United States, this court held that a Confrontation Clause violation did not satisfy the fourth prong of the plain-error test when the trial court erroneously admitted a DEA chemist’s report that a particular substance was cocaine and there was “no reason whatsoever to believe' that the chemist’s report was unreliable.” Thomas, 914 A.2d at 22-24 ; Otts, 952 A.2d at 162-63 .

2024But our court’s en banc decision in Watts rejected such a reading of Rule 30, concluding that, notwithstanding the rule’s categorical language, the plain error doctrine took precedence and allowed for review of unpreserved instructional claims. 362 A.2d at 708 & n.3 (recognizing Rule 30’s instruction that “[n]o party could assign . . . error” to a jury instruction unless they objected before the jury retired to deliberate, but concluding that “[n]onetheless, where there is plain error concerning instructions such an error is subject to review”); see also Allen, 495 A.2d at 1151-52 (holding tha

2024See, e.g., Watts, 362 A.2d at 708 & n.3 (concluding that, despite the categorical language in Rule 30 limiting review of untimely claims, the plain error standard in Rule 52(b) allowed for review of unpreserved instructional claims on appeal); Allen, 495 A.2d at 1151-52 (holding that plain error review applied to unpreserved claims of error in jury instructions pursuant to Rule 30); Jones, 527 U.S. at 388 (acknowledging that “[w]hile Rule 30 could be read literally to bar any review of [an unpreserved] claim of error,” courts may still review unpreserved instructional errors for plain error un

2013See Hasty v. United States, 669 A.2d 127, 134 (D.C.1995) (explaining that this court reviews errors not objected to under the plain-error standard); (Linwood) Johnson v. United States, 387 A.2d 1084, 1086 (D.C.1978) (explaining that the reason for requiring contemporaneous objections is to give the trial court an opportunity to correct potential mistakes).

2009Under the plain error doctrine, this court may, at its discretion, “notice defects raised for the first time on appeal if substantial rights were clearly and prejudicially denied below.” (Linwood) Johnson v. United States, 387 A.2d 1084, 1088 (D.C.1978).

2018The plain error test requires that there "be (1) 'error,' (2) that is 'plain,' and (3) that 'affects substantial rights.' " Johnson v. United States , 520 U.S. 461 , 466-67, 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (internal brackets omitted) (quoting United States v. Olano , 507 U.S. 725 , 732, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) ).

2018The plain error test requires that there "be (1) 'error,' (2) that is 'plain,' and (3) that 'affects substantial rights.' " Johnson v. United States , 520 U.S. 461 , 466-67, 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (internal brackets omitted) (quoting United States v. Olano , 507 U.S. 725 , 732, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) ).

2026As C.P. forfeited his right to consideration of these claims, we review them for plain error. 15 Under the plain error review standard, an appellant must show: (1) “an error or defect”; (2) that is “clear or obvious, rather than subject to reasonable dispute[;]” and (3) that “affected the appellant’s substantial rights” by affecting the outcome of the trial court proceedings; in which case, (4) “the court of appeals has the discretion to remedy the error . . . only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Puckett v. United States, 5

2024Puckett, 556 U.S. at 136 (rejecting argument that plain error does not apply to unpreserved claim that 39 government violated terms of plea agreement and explaining that “the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others”) (emphasis added).7 Absent the term “waiver,” nothing in the text of the amended rule appears to upset established rules of forfeiture or require appellate courts to apply a “waiver”-absent-good-cause standard to unpreser

2025See Alleyne v. United States, 327 A.3d 472 , 484 (D.C. 2024) (“The plain-error test imposes a ‘formidable’ burden on appellants who advance unpreserved claims.” (quoting Hunter v. United States, 606 A.2d 139, 144 (D.C. 1992))) (emphasis added); see also Lowery v. United States, 3 A.3d 1169, 1177 (D.C. 2010) (declining to remand for evidentiary hearing on unpreserved issue where that “would violate the plain error rule and our precedent by shifting from the appellant the burden of demonstrating plain error on the existing record”).

2020See Lowery v. United States, 3 A.3d 1169, 1172 (D.C. 2010). 21 We find no abuse of discretion or plain error. 21 Jones v. United States, 127 A.3d 1173, 1187 (D.C. 2015) (“Under the plain error doctrine, appellant must establish (1) that the trial judge committed error; (2) that the error was plain, i.e., clear or obvious; (3) that the error affected his substantial rights; and (4) that a failure to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings.”). 47 First, the trial court did not unduly limit the defense’s cross-examination of t

2013“Even if all three of these conditions are met, this court will not reverse unless (4) ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Davis, 984 A.2d at 1259; see also Harris v. United States, 602 A.2d 154, 159 (D.C.1992) (en banc) (quoting United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982)) ( ‘It is well settled that reversal under the plain error doctrine is justified only in exceptional circumstances where ‘a miscarriage of justice would otherwise result.’ ”).

2013“Even if all three of these conditions are met, this court will not reverse unless (4) ‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Davis, 984 A.2d at 1259; see also Harris v. United States, 602 A.2d 154, 159 (D.C.1992) (en banc) (quoting United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982)) ( ‘It is well settled that reversal under the plain error doctrine is justified only in exceptional circumstances where ‘a miscarriage of justice would otherwise result.’ ”).

2014Because an objection was never made at trial with regard to these allegedly inappropriate remarks, the plain error standard applies — a "stringent” standard that requires "a showing of ... error so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.” McGrier v. United States, 597 A.2d 36, 41 (D.C.1991) (citations and internal quotation marks omitted); see also Hargrove v. United States, 55 A.3d 852, 858 (D.C.2012) (citing McGrier, supra, 597 A.2d at 41 ).

2014Because an objection was never made at trial with regard to these allegedly inappropriate remarks, the plain error standard applies — a "stringent” standard that requires "a showing of ... error so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.” McGrier v. United States, 597 A.2d 36, 41 (D.C.1991) (citations and internal quotation marks omitted); see also Hargrove v. United States, 55 A.3d 852, 858 (D.C.2012) (citing McGrier, supra, 597 A.2d at 41 ).

2016“As a result, our review is for plain error.” Payne v. United States, 932 A.2d 1095 , 1101 n. 3 (D.C.2007) (rejecting challenge to reasonable doubt instruction on plain error review). “[A]ppellant bears the burden of persuasion on each of the four prongs of the plain error standard[,]” Lowery v. United States, 3 A.3d 1169, 1173 (D.C.2010), and that burden “is, and should be, a formidable one,” Comford v. United States, 947 A.2d 1181, 1189 (D.C.2008).

2015Therefore, under our precedent, appellants cannot prevail on the basis óf the inclusion of the phrase “threats of force” in the written instructions, Appellants’ argument based on the “means of force” language mistakenly read by the trial court during its oral jury instructions also falls short; this time the claim fails on the third prong of the plain error standard, which requires that appellants “demonstrate that the error affected [their] substantial rights by showing a reasonable probability that it had a prejudicial effect on the outcome of [their] trial[s].” Comford v. United States, 94

2012“Under the plain error standard ... [appellant] not only must establish ‘error,’ but also that the error is ‘plain’ and ‘affect[s] substantial rights.’ ” Wilson v. United States, 785 A.2d 321, 326 (D.C.2001) (second alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)).

2010We review the sentence issued by the trial court for plain error, Wilson v. United States, 785 A.2d 321 , 326 *969 (D.C.2001), because the appellant failed to raise this issue at sentencing.

2023Even assuming that appellant could identify error that is plain or obvious, he cannot satisfy the third prong of the plain error test. 9 9 “‘Under the test for plain error, an appellant must show (1) error, (2) that is plain, and (3) that affected [his] substantial rights.’” Buskey, 148 A.3d at 1204 . (alteration in original) (quoting Fortune v. United States, 59 A.3d 949, 954 (D.C. 2013)). “‘To show that the error affected a substantial right, the appellant . . . must show a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.’” Id.

2023Even assuming that appellant could identify error that is plain or obvious, he cannot satisfy the third prong of the plain error test. 9 9 “‘Under the test for plain error, an appellant must show (1) error, (2) that is plain, and (3) that affected [his] substantial rights.’” Buskey, 148 A.3d at 1204 . (alteration in original) (quoting Fortune v. United States, 59 A.3d 949, 954 (D.C. 2013)). “‘To show that the error affected a substantial right, the appellant . . . must show a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.’” Id.

2017Accordingly, this inquiry must be conducted under a plain error standard, and appellant must demonstrate that: “(1) that the trial judge committed error; (2) that the error was plain, i.e., clear or obvious; (3) that the error affected his substantial rights; and (4) that a failure to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Jones v. United States, 127 A.3d 1173, 1187 (D.C. 2015) (citing Marshall v. United States, 15 A.3d 699, 710 (D.C. 2011)).

2015Moreover, as Beaver did not raise the issue of either constructive amendment or prejudicial variance at trial, we must review his claim under the plain error standard. 37 “Under the plain error doctrine, appellant must establish (1) that the trial court committed error; (2) that the error was plain, i.e., clear or obvious; (3) that the error affected substantial rights; and (4) that a failure to correct the error would seriously affect the fairnéss, integri-' ty, 'or-public reputation of judicial proceedings.” Marshall, 15 A.3d at 710 (internal quotation marks and emphasis omitted) (citing Uni

2017“On a plain error review, an appellant must show that the objectionable action was (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.” Coleman v. United States, 948 A.2d 534, 544 (D.C. 2008) (quoting Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006)). 2 The first prong is dispositive in this case.

2017“On a plain error review, an appellant must show that the objectionable action was (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.” Coleman v. United States, 948 A.2d 534, 544 (D.C. 2008) (quoting 4 Marquez v. United States, 903 A.2d 815, 817 (D.C. 2006)).2 The first prong is dispositive in this case.

2009The plain error rule emphasizes the importance of encouraging “‘all trial participants’ — including defendants— to ‘seek a fair and accurate trial the first time around-’” Foreman v. United States, 633 A.2d 792, 797 (D.C.1993) (quoting United States v. Frady, 456 U.S. 152, 163 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982)).

2006In fact, appellant notes, his lawyer “actually admitted to the court that he did not know his client’s explanation for being out of contact.” In these circumstances, he stresses, “the court had an affirmative obligation to see that justice be done, that the defendant’s due process rights be assured.” In failing to do so, the trial court plainly erred, he says — committing an error so “ ‘obviously and readily apparent’ and ‘so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.’ Foreman v. United States, 633 A.2d 792, 795 (D.C.1993).” Before

2009We have interpreted the fourth prong of that test to permit reversal of a conviction “only in exceptional circumstances where a miscarriage of justice would otherwise result.” Bra wner v. United States, 745 A.2d 354, 357 (D.C.2000) (citations omitted); see also United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982) (explaining that courts of appeals “long have recognized” that they are to use their power under the plain-error rule “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result”); United States v. Olano, 507 U

2009We have interpreted the fourth prong of that test to permit reversal of a conviction "only in exceptional circumstances where a miscarriage of justice would otherwise result." Brawner v. United States, 745 A.2d 354, 357 (D.C.2000) (citations omitted); see also United States v. Frady, 456 U.S. 152 , 163 n. 14, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982) (explaining that courts of appeals "long have recognized" that they are to use their power under the plain-error rule "sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result"); United States v. Olano, 507 U.

2024Reviewing claims only for plain error provides an incentive for defendants to timely raise claims before the trial court because “meeting all four prongs [of the test] is difficult, ‘as it should be.’” Puckett, 556 U.S. at 135 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, n. 9 (2004)); accord Headspeth, 910 A.2d at 318 (noting that the plain error standard makes the failure to preserve claims “particularly costly”) (quoting Allen, 495 A.2d at 1151 ).

2024Reviewing claims only for plain error provides an incentive for defendants to timely raise claims before the trial court because “meeting all four prongs [of the test] is difficult, ‘as it should be.’” Puckett, 556 U.S. at 135 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, n. 9 (2004)); accord Headspeth, 910 A.2d at 318 (noting that the plain error standard makes the failure to preserve claims “particularly costly”) (quoting Allen, 495 A.2d at 1151 ).

1984Under the plain error standard we must find that there was prejudice to appellant’s substantial rights so severe as to amount to a “miscarriage of justice.” Adams v. United States, 302 A.2d 232, 234 (D.C.1973); see Watts v. United States, 362 A.2d 706 (D.C. 1976) (en banc).

1984Under the plain error standard we must find that there was prejudice to appellant's substantial rights so severe as to amount to a "miscarriage of justice." Adams v. United States, 302 A.2d 232, 234 (D.C.1973); see Watts v. United States, 362 A.2d 706 (D.C. 1976) (en banc).

2016See, e.g., Fortune v. United States, 59 A.3d 949, 954-55 (D.C. 2013) (finding plain error under Olano where the trial court failed to obtain a valid waiver of appellant’s jury trial right in a criminal case); In re Robertson, 19 A.3d 751, 760 (D.C. 2009) (applying the test from Puckett and Olano in a criminal contempt case); Otts v. United States, 952 A.2d 156, 161-62 (D.C. 2008) (applying the plain error test under Olano in a criminal, unlawful-drug-possession case). 12 See 42 U.S.C. § 671 (a)(19) (2012); see also 62 Fed.

2016In Thomas v. United States and Otts v. United States, this court held that a Confrontation Clause violation did not satisfy the fourth prong of the plain-error test when the trial court erroneously admitted a DEA chemist’s report that a particular substance was cocaine and there was “no reason whatsoever to believe' that the chemist’s report was unreliable.” Thomas, 914 A.2d at 22-24 ; Otts, 952 A.2d at 162-63 .

2024The Supreme Court appears to have first announced its own power to review unpreserved claims for plain error in Wiborg v. United States, 163 U.S. 632, 658 (1896) (explaining that “if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it”).

2024The Supreme Court appears to have first announced its own power to review unpreserved claims for plain error in Wiborg v. United States, 163 U.S. 632, 658 (1896) (explaining that “if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it”).

2015And even if, as our dissenting colleague 5 Moreover, in one of its notes, the jury asked, “In considering self- defense[,] once it becomes an act of self defense[,] does excessive force to protect yourself outweigh the act of self defense[?]” 6 The jury was instructed that “[e]ven if the other person is the aggressor and the defendant is justified in using force in self-defense, he may not use any greater force than he actually and reasonably believes to be necessary under the circumstances to prevent the harm he reasonably believes is intended or to save his life or avoid serious bodily harm.

2015And even if, as our dissenting colleague suggests, the jur/s deliberations did not play out in the way we think likely, appellant has not “showM a reasonable probability” that, as the third prong of the plain-error test requires, the trial court’s failure sua sponte to order the government to produce the contents of the North Carolina file “had a prejudicial effect on the outcome of his trial.” Kidd v. United States, 940 A.2d 118, 127 (D.C.2007) (internal quotation marks omitted).