Is it plain wrong to allow waiver of plain error review?


USDC Judge Amul Thapar

Should a party be allowed to waive plain error review under Rule 52(b)? In a concurrence to United States v Williams, U.S District Court Judge Amul Thapar, sitting by designation, made his case as to why the answer should be “no.”

In the case itself, the court applied the 6th Circuit’s rule (you mean you don’t know?) that unpreserved errors in the trial court normally should receive plain error review under Rule 52(b), unless neither party asks for it. In such case, the Court of Appeals considers the heightened standard of review to be waived and applies the review requested by the appellant. In this case, it was de novo review.

While Thapar concurred in the result, he found the waiver rule offensive as a trial judge.

Judges are not like the supercomputer Watson. They can do their best to be prepared with the Rules of Procedure and Evidence, the relevant constitutional law, and applicable statutes—all refracted through two layers of precedent.  But they have no hope of knowing everything, and when unfamiliar issues arise in the courtroom, they will not catch them every time.  Even when they do, they cannot always delay the proceeding to find the right answer.  Clogged dockets and the delay imposed on parties’ lives mean time is of the essence.  Fortunately, in our adversarial system, judges have some help.

Said help is Rule 52(b) which, Thapar wrote, “encourages litigants to decide what issues really matter and to raise them while the district court still has time to take action, rather than ‘sandbagging’ and remaining silent pending the outcome of the case.”

Thapar said the rule protects litigators, who can knowingly allow errors by the other side for strategic reasons.

And it gives the parties strategic latitude.  Litigants may choose not to object even if they perceive a legal error. A defense attorney, for instance, may not object to certain testimonial hearsay about his client—which would be inadmissible under Crawford v. Washington, 541 U.S. 36 (2004)—because he knows it exposes an inconsistency in the government’s theory of the case.  Anyone who has tried a case knows that these strategic decisions—even foregoing certain constitutional rights—may look like error later, especially when viewed in isolation on a cold record.  Yet, in the heat of battle, such decisions often make sense to a seasoned trial lawyer.  The last thing the rules should do is encourage trial judges to get in the middle of these decisions and force defense attorneys to explain themselves with the government keenly listening.

Thapar offers two arguments against the waiver policy: 1) The rule doesn’t specifically allow it, and 2) because no one has offered a justification. Of course, soon after he offers argument number two, he starts shooting down other circuits’ justification. For instance, the 6th Circuit’s justification is that the court can assume an issue was preserved the opponent doesn’t object on that basis.

On one hand, seems to makes sense. Isn’t that essentially the same argument? By not objecting to the unpreserved issue, isn’t a party himself failing to preserve the issue?  Thapar says ‘no’:

Sure, a court of appeals can examine an otherwise forfeited issue (e.g., was it error to sentence Williams by video?) if a party fails to notify the court of he forfeiture.  But this does not mean that the same forgetful party can waive the standard of review (e.g., plain error or de novo?) the court uses to evaluate that issue.

Courts seem to confuse this distinction because they simply read Rule 52(b) as controlling whether they can even address a forfeited issue in the first place, not as supplying a standard for how the court should review that issue.  What they overlook is that Rule 52(b) contains both a “whether” and a “how.”

On the one hand, the Supreme Court has interpreted Rule 52(b) as limiting “whether” courts of appeals can even consider an issue.  Courts of appeals can only consider forfeited issues if they represent a “miscarriage of justice.”  Olano, 507 U.S. at 736.  But on the other hand, Rule 52(b) also controls “how” courts of appeals review those forfeited issues.  It instructs courts to only correct an error if it is “plain” and “affects substantial rights.”  Id. at 732-33.  So while it might make sense to say that a party can “waive” Rule 52(b)’s limit on “whether” to consider an “error,” I know of no reason to also hold that a party can waive Rule 52(b)’s limits on “how” to consider that error—the standard of review.

On the other hand, as Thapar asks, wouldn’t such a policy allow any standard of review to be waived?

Surely this is wrong.  A court of appeals would not, for instance, review a question of law for clear error just because both parties mistook it for a question of fact.  Nor would a court of appeals review de novo a decision committed to a district court’s discretion just because the parties forgot to specify the standard of review.  And, not surprisingly, the case law supports the view that courts are not held hostage to the parties’ poor briefing when determining the appropriate standard of review.

Is he right? Feel free to leave your opinion in the comments.

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