[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 6-3 in Henderson v. United States [JURIST report] that an error is “plain” within the meaning of Federal Rule of Criminal Procedure 52(b) [text] so long as the error was plain at the time of appellate review, even if that error is based on legal opinions announced since the original incident of error. Justice Stephen Breyer delivered the majority opinion.

Imagine three virtually identical defendants, each from a different circuit, each sentenced in January to identical long prison terms, and each given those long sentences for the same reason, namely to obtain rehabilitative treatment. Imagine that none of them raises an objection. In June, the Supreme Court holds this form of sentencing unlawful. And, in December, each of the three different circuits considers the claim that the trial judge’s January imposed prison term constituted a legal error. Imagine further that in the first circuit the law in January made the trial court’s decision clearly lawful as of the time when the judge made it; in the second circuit, the law in January made the trial court’s decision clearly unlawful as of the time when the judge made it; and in the third circuit, the law in January was unsettled.

To apply Rule 52(b)’s words “plain error” as of the time of appellate review would treat all three defendants alike. It would permit all three to go on to argue to the appellate court that the trial court error affected their “substantial rights” and “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” To interpret “plain error” differently, however, would treat these three virtually identical defendants differently, allowing only the first two defendants, but not the third defendant, potentially to qualify for Rule 52(b) relief.

Before this holding, the First, Second, Sixth, Tenth and Eleventh Circuits applied Rule 52(b) as being at the time of appeal, while the Ninth Circuit applied the law at the time of trial.

Justice Antonin Scalia, joined by Justices Thomas and Alito, dissented from the holding. “Since a plain-error doctrine of this sort cannot possibly induce counsel to make contemporaneous objection, it seemingly has no purpose whatever except to create the above described anomaly. No, that is not quite true. It does serve the purpose of enabling today’s opinion to say that the plain-error rule has been ‘preserved,’ and has not been entirely converted to a simple-error rule. Of course a simple-error rule—all trial-court mistakes affecting substantial rights can be corrected on appeal—would better serve the Court’s mistaken understanding that the only purpose of Rule 52(b) is fairness combined with its erroneous perception that all defendants who fail to make a timely objection to misapplication of the law stand in the same boat. But a simple-error rule would be contrary to the clear text of Rule 52(b), which tempers Rule 51(b) with ‘fairness’ only when the error is plain. The Court must find some application for the plainness requirement, even if it be one that is utterly pointless. It has done so.”