plain error in North Carolina

2026As our Supreme Court has emphasized, the plain error rule “is always to be applied cautiously and only in the exceptional case[.]” State v. Odom, 307 N.C. 655, 660 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).

2026Plain error arises when an error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660 (1983) (citation omitted).

2026The plain error rule is traditionally applied in the “exceptional case where, after reviewing the entire record, the claimed error is [considered] a ‘fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ ” State v. Odom, 307 N.C. 655, 660 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (emphasis in original)); see State v. Lawrence, 365 N.C. 506, 516 (2012).

2026As our Supreme Court has emphasized, the plain error rule “is always to be applied cautiously and only in the exceptional case[.]” State v. Odom, 307 N.C. 655, 660 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).

2026Plain error review is applied to unpreserved issues, “and it requires the defendant to bear the heavier burden of showing that the error rises to the level of plain error.” Lawrence, 365 N.C. at 516 ; see also N.C.

2026Plain error review is applied to unpreserved issues, “and it requires the defendant to bear the heavier burden of showing that the error rises to the level of plain error.” Lawrence, 365 N.C. at 516 ; see also N.C.

2026“Under the plain error rule, [the] defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440 (1993).

2026To succeed under the plain error rule, the “defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440 (1993) (citing State v. Faison, 330 N.C. 347 (1991)).

2016Plain error may also exist when the error is "so fundamental as to amount to a miscarriage of justice." Id. (quoting State v. Bagley, 321 N.C. 201 , 213, 362 S.E.2d 244 , 251 (1987), cert. denied, 485 U.S. 1036 , 99 L.Ed.2d 912 (1988) ).

2016Plain error may also exist when the error is "so fundamental as to amount to a miscarriage of justice." Id. (quoting State v. Bagley, 321 N.C. 201 , 213, 362 S.E.2d 244 , 251 (1987), cert. denied, 485 U.S. 1036 , 99 L.Ed.2d 912 (1988) ).

2023“The plain error rule applies only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986).

2023“The plain error rule applies only in truly exceptional cases.” State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986).

2025FAIR Opinion of the Court rule,” State v. Cummings, 352 N.C. 600, 637 , 536 S.E.2d 36, 61 (2000); see also State v. Reber, 386 N.C. 153 , 159–60, 900 S.E.2d 781 , 787–88 (2024) (explaining a defendant must demonstrate that absent the error in question, the jury “almost certainly” would have reached a different result to satisfy the “prejudice prong” of the plain-error test).

2025FAIR Opinion of the Court rule,” State v. Cummings, 352 N.C. 600, 637 , 536 S.E.2d 36, 61 (2000); see also State v. Reber, 386 N.C. 153 , 159–60, 900 S.E.2d 781 , 787–88 (2024) (explaining a defendant must demonstrate that absent the error in question, the jury “almost certainly” would have reached a different result to satisfy the “prejudice prong” of the plain-error test).

2011App. 110 , 117-18 605 S.E.2d 647, 653-54 (2004) (refusing to provide plain error relief in a case in which the defendant specifically opposed the submission of a lesser included offense), vacated in part on other grounds, 361 N.C. 160 , 695 S.E.2d 750 (2006), we conclude that the trial court’s failure to instruct the jury on attempted first-degree sexual offense constituted *467 plain error, see State v. Collins, 334 N.C. 54, 62-63 , 431 S.E.2d 188, 193 (1993) (holding that the trial court committed plain error by failing to instruct the jury concerning the issue of the defendant’s guilt of at

2011App. 110 , 117-18 605 S.E.2d 647, 653-54 (2004) (refusing to provide plain error relief in a case in which the defendant specifically opposed the submission of a lesser included offense), vacated in part on other grounds, 361 N.C. 160 , 695 S.E.2d 750 (2006), we conclude that the trial court’s failure to instruct the jury on attempted first-degree sexual offense constituted *467 plain error, see State v. Collins, 334 N.C. 54, 62-63 , 431 S.E.2d 188, 193 (1993) (holding that the trial court committed plain error by failing to instruct the jury concerning the issue of the defendant’s guilt of at

2012Because Defendant bears the burden of showing that an error arose to the level of plain error, Bishop, 346 N.C. at 385 , 488 S.E.2d at 779 , and because Defendant failed to meet this burden, we conclude the trial court did not commit plain error in its jury instructions on the elements of the offenses in this case.

2012Because Defendant bears the burden of showing that an error arose to the level of plain error, Bishop, 346 N.C. at 385 , 488 S.E.2d at 779 , and because Defendant failed to meet this burden, we conclude the trial court did not commit plain error in its jury instructions on the elements of the offenses in this case.

2025KELLY Opinion of the Court to plain error . . . .” State v. Gregory, 342 N.C. 580, 584 , 467 S.E.2d 28, 31 (1996); see State v. Lawrence, 365 N.C. 506, 516 , 723 S.E.2d 326, 333 (2012) (explaining “plain error review . . . is normally limited to instructional and evidentiary error”).

2025KELLY Opinion of the Court to plain error . . . .” State v. Gregory, 342 N.C. 580, 584 , 467 S.E.2d 28, 31 (1996); see State v. Lawrence, 365 N.C. 506, 516 , 723 S.E.2d 326, 333 (2012) (explaining “plain error review . . . is normally limited to instructional and evidentiary error”).

2025However, “plain error review is unavailable for issues that fall within the realm of the trial court’s discretion, such as Rule 403 determinations.” Id. at 821, 909 S.E.2d at 251 (cleaned up); see also State v. Steen, 352 N.C. 227, 256 , 536 S.E.2d 1, 18 (2000) (“[T]his Court has not applied the plain error rule to issues which fall within the realm of the trial court’s discretion, and we decline to do so now.”), cert. denied, 531 U.S. 1167 , 148 L.

2025However, “plain error review is unavailable for issues that fall within the realm of the trial court’s discretion, such as Rule 403 determinations.” Id. at 821, 909 S.E.2d at 251 (cleaned up); see also State v. Steen, 352 N.C. 227, 256 , 536 S.E.2d 1, 18 (2000) (“[T]his Court has not applied the plain error rule to issues which fall within the realm of the trial court’s discretion, and we decline to do so now.”), cert. denied, 531 U.S. 1167 , 148 L.

2020The plain error rule thus requires a defendant to show “[i]n other words, . . . that the error in question ‘tilted the scales’ and caused the jury to reach its verdict convicting the defendant.” State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986) (citing State v. Black, 308 N.C. 736, 741 , 303 S.E.2d 804, 806-807 (1983)).

2020The plain error rule thus requires a defendant to show “[i]n other words, . . . that the error in question ‘tilted the scales’ and caused the jury to reach its verdict convicting the defendant.” State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986) (citing State v. Black, 308 N.C. 736, 741 , 303 S.E.2d 804, 806-807 (1983)).

2026App. 199 , 205 (2025). “[T]o demonstrate that a trial court committed plain error, the defendant must show ‘that a fundamental error occurred at trial.’ ” State v. Maddux, 371 N.C. 558, 564 (2018) (quoting State v. Lawrence, 365 N.C. 506, 518 (2012)).

2024Indeed, as both the Black and Walker Courts explained, the strength and volume of the evidence against the defendant plays a role in the plain error analysis. 1 Black, 308 N.C. at 741; Walker, 1 It is important to note that while the majority cites State v. Maddux, 371 N.C. 558, 564 (2018), for the proposition that it is improper to consider “the strength of the State’s evidence” when conducting a plain error analysis, Maddux does not state this.

2019"In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected." State v. Holden , 346 N.C. 404 , 435, 488 S.E.2d 514 , 531 (1997), cert. denied , 522 U.S. 1126 , 118 S.Ct. 1074 , 140 L.Ed.2d 132 (1998).

2019"In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected." State v. Holden , 346 N.C. 404 , 435, 488 S.E.2d 514 , 531 (1997), cert. denied , 522 U.S. 1126 , 118 S.Ct. 1074 , 140 L.Ed.2d 132 (1998).

2007Plain error is an error “ ‘so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.’ ” State v. Parker, 350 N.C. 411, 427 , 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084 , 145 L.

2007Plain error is an error “ ‘so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.’ ” State v. Parker, 350 N.C. 411, 427 , 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084 , 145 L.

2007Under well-established North Carolina law, "plain error analysis applies only to instructions to the jury and evidentiary matters." State v. Cummings, 352 N.C. 600, 613 , 536 S.E.2d 36, 47 (2000) (citations and quotation omitted), cert. denied, 532 U.S. 997 , 121 S.Ct. 1660 , 149 L.Ed.2d 641 (2001); see also State v. Atkins, 349 N.C. 62, 81 , 505 S.E.2d 97, 109-10 (1998) (refusing to apply the plain error doctrine to a trial court's failure to give an instruction during jury voir dire that was not requested), cert. denied, 526 U.S. 1147 , 119 S.Ct. 2025 , 143 L.Ed.2d 1036 (1999).

2007Under well-established North Carolina law, "plain error analysis applies only to instructions to the jury and evidentiary matters." State v. Cummings, 352 N.C. 600, 613 , 536 S.E.2d 36, 47 (2000) (citations and quotation omitted), cert. denied, 532 U.S. 997 , 121 S.Ct. 1660 , 149 L.Ed.2d 641 (2001); see also State v. Atkins, 349 N.C. 62, 81 , 505 S.E.2d 97, 109-10 (1998) (refusing to apply the plain error doctrine to a trial court's failure to give an instruction during jury voir dire that was not requested), cert. denied, 526 U.S. 1147 , 119 S.Ct. 2025 , 143 L.Ed.2d 1036 (1999).

2018"Generally speaking, the [plain error] rule provides that a criminal defendant is entitled to a new trial if the defendant demonstrates that the jury probably would have returned a different verdict had the error not occurred." State v. Lawrence , 365 N.C. 506 , 507, 723 S.E.2d 326 , 327 (2012) (emphasis added) (citing State v. Walker , 316 N.C. 33 , 39, 340 S.E.2d 80 , 83 (1986) ). "[P]lain error review ... is normally limited to instructional and evidentiary error." Id. at 516, 723 S.E.2d at 333 (citing State v. Wiley , 355 N.C. 592 , 615, 565 S.E.2d 22 , 39-40 (2002), cert. denied , 537 U.S

2018"Generally speaking, the [plain error] rule provides that a criminal defendant is entitled to a new trial if the defendant demonstrates that the jury probably would have returned a different verdict had the error not occurred." State v. Lawrence , 365 N.C. 506 , 507, 723 S.E.2d 326 , 327 (2012) (emphasis added) (citing State v. Walker , 316 N.C. 33 , 39, 340 S.E.2d 80 , 83 (1986) ). "[P]lain error review ... is normally limited to instructional and evidentiary error." Id. at 516, 723 S.E.2d at 333 (citing State v. Wiley , 355 N.C. 592 , 615, 565 S.E.2d 22 , 39-40 (2002), cert. denied , 537 U.S

2025For the second prong of the plain error test, the defendant must show “that it is ‘probable, not just possible,’ that the outcome would have been different absent the error.” Id. at 160 (quoting State v. Juarez, 369 N.C. 351, 358 (2016)).

2025Since adopting the plain error rule, however, our Supreme Court has held that even if a trial court improperly gives an instruction on the aggressor doctrine, the defendant must still “show that, absent the erroneous instruction, it is probable that the jury would have found that he acted in perfect self-defense.” Juarez, 369 N.C. at 358–59.

2020CHAVEZ Opinion of the Court is not plain error even under the stringent test required to invoke that doctrine.” State v. Tucker, 317 N.C. 532, 540 , 346 S.E.2d 417, 422 (1986); see id. at 537-38 , 346 S.E.2d at 420 (explaining that “[a]lthough the state’s evidence supported [the trial court’s] instruction, the indictment does not.

2020CHAVEZ Opinion of the Court is not plain error even under the stringent test required to invoke that doctrine.” State v. Tucker, 317 N.C. 532, 540 , 346 S.E.2d 417, 422 (1986); see id. at 537-38 , 346 S.E.2d at 420 (explaining that “[a]lthough the state’s evidence supported [the trial court’s] instruction, the indictment does not.

2010“Under a plain error analysis, [a] defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125 , 558 S.E.2d 97, 1032 (2002) (citation omitted).

2010“Under a plain error analysis, [a] defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125 , 558 S.E.2d 97, 1032 (2002) (citation omitted).

2011State v. Cummings, 346 N.C. 291, 314 , 488 S.E.2d 550, 563-64 (1997) (internal quotations and external citation omitted).

2011State v. Cummings, 346 N.C. 291, 314 , 488 S.E.2d 550, 563-64 (1997) (internal quotations and external citation omitted).

2015Because “[a] prerequisite to our engaging in a ‘plain error’ analysis is the determination that the [trial court's ruling] constitutes ‘error’ at all,” State v. Torain, 316 N.C. 111, 116 , 340 S.E.2d 465, 468 (1986), we initially determine if the trial court erred by admitting the challenged evidence and, if so, then determine whether any error rose to the level of plain error.

2015Because “[a] prerequisite to our engaging in a ‘plain error’ analysis is the determination that the [trial court's ruling] constitutes ‘error’ at all,” State v. Torain, 316 N.C. 111, 116 , 340 S.E.2d 465, 468 (1986), we initially determine if the trial court erred by admitting the challenged evidence and, if so, then determine whether any error rose to the level of plain error.

2010“Under the plain error standard of review, defendant has the burden of showing: ‘(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.’ ” State v. Jones, 358 N.C. 330, 346 , 595 S.E.2d 124, 135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385 , 488 S.E.2d 769, 779 (1997)), cert. denied, Jones v. North Carolina, 543 U.S. 1023 , 160 L.

2010“Under the plain error standard of review, defendant has the burden of showing: ‘(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.’ ” State v. Jones, 358 N.C. 330, 346 , 595 S.E.2d 124, 135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385 , 488 S.E.2d 769, 779 (1997)), cert. denied, Jones v. North Carolina, 543 U.S. 1023 , 160 L.