Moving Toward Law: Refocusing the Federal Courts’ Plain Error Doctrine in Criminal Cases

This article examines the plain error doctrine in criminal cases in the federal courts. An examination of the earliest plain error cases shows the federal courts’ concern that, without the authority to address errors not preserved with a contemporaneous objection, federal courts would affirm convictions and sentences that were either wrongful or unfair. But the plain error doctrine that the federal courts now employ, as announced in United States v. Olano, is poorly suited to discovering and correcting even the serious errors that the plain error doctrine was intended to remedy. Because the doctrine is discretionary and fact-specific, it fails to generate precedents to guide future courts and litigants and perpetuates a guilt-based approach to evaluating errors. Moreover, Olano’s four-pronged test leads appellate courts away from the most critical inquiry: did the error undermine the fairness and reliability of the defendant’s conviction and sentence? The article proposes a new formulation of the plain error doctrine that addresses these problems.