Georgia Appeals Law Guide / Appellate Law Treatise

Plain Error

Generally, a party arguing on appeal that the lower court made an error must have “preserved the error” by making the same argument to the lower court at the time it originally occurred. Some categories of error, however, do not need to be preserved. Errors that are “plain” may be asserted on appeal even if the appellant failed to preserve the error in the trial court. “‘Plain error’ is that which is ‘so clearly erroneous as to result in a likelihood of a grave miscarriage of justice’ or which ‘seriously affects the fairness, integrity or public reputation of a judicial proceeding.’” Lynd v. State, 262 Ga. 58, 61 n.2 (414 SE2d 5) (1992) (quoting United States v. Fuentes-Coba, 738 F.2d 1191, 1196 (11th Cir.1984)). “[P]lain error doctrine reflects a policy balance between requiring timely and specific objections at trial, to provide trial courts the opportunity to correct errors before judgment, and ensuring that criminal defendants whose lawyers failed to raise meritorious objections are not thereby deprived of a fair trial.” Collier v. State, 288 Ga. 756 (707 SE2d 102) (2011) (Nahmias, J., specially concurring). Georgia courts have recognized plain error in only limited circumstances. Id. (noting Georgia Supreme Court “has been chary about establishing plain error review by judicial decision”).

Criminal jury charges

OCGA § 17–8–58 governs objections to jury charges in criminal cases. Under Section 17-8-58(b), failure to object to a portion of a criminal jury charge does not preclude appellate review if “such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” Thus, “appellate review for plain error is required whenever an appealing party properly asserts [on appeal] an error in jury instructions.” State v. Kelly, 290 Ga. 29, 32 (718 SE2d 232) (2011). It is not necessary for the appellant to have objected at the time the jury charges were given.

Kelly adopted the federal test for determining plain error: “First, there must be an error or defect—some sort of ‘[d]eviation from a legal rule’—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the [trial] court proceedings.’ Fourth and finally, if the above three prongs are satisfied, the [appellate court] has the discretion to remedy the error—discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Id. at 33 (quoting Puckett v. United States, 556 U.S. 129 (2009)).

Civil jury charges

OCGA § 5-5-24(c), similar to OCGA § 17-8-58(b), provides for appellate review of civil jury charges “where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made.” Section 5-5-24(c) is “strictly construed” and “an erroneous charge or failure to charge must result in a gross injustice, such as to raise a question as to whether the appellant has been deprived of a fair trial,” for appellate review in the absence of a timely objection. Gray v. Elias, 236 Ga. App. 799, 802 (513 SE2d 539) (1999) (citation and quotation marks omitted).

“Super-plain error”

Under OCGA § 17-8-57, if a judge “express[es] or intimate[s] his opinion as to what has or has not been proved or as to the guilt of the accused,” the appeals court “shall” reverse the decision in the case and grant a new trial. A violation of Section 17-8-57 “will always constitute ‘plain error.’” State v. Gardner, 286 Ga. 633 (690 SE2d 164) (2010). Moreover, violations of this section require reversal even where the normal requirement of prejudice is not met. See Wells v. State, S14A0491, slip op. at 11-12 (Ga. May 5, 2014) (“Alleged violations of § 17-8-57 are subject to a sort of ‘super-plain error’ review; not only may they be raised on appeal without any objection at trial, but, if sustained, they automatically result in reversal without consideration of whether the error caused any actual prejudice.”).

Capital cases

Rule IV(B)(2) of the Georgia Unified Appeal Procedure applicable to death penalty cases, adopted by the Georgia Supreme Court pursuant to OCGA § 17-10-36(a), states: “The Supreme Court shall review each of the assertions of error timely raised by the defendant during the proceedings in the trial court regardless of whether an assertion of error was presented to the trial court by motion for new trial and regardless of whether error is enumerated in the Supreme Court. However, except in cases of plain error, assertions of error not raised on appeal shall be waived.”

Jury charge on punitive damages

In Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121 (488 SE2d 500) (1997), the trial court charged the jury under an earlier version of the punitive damages statute, which allowed punitive damages as “compensation for the wounded feelings of the plaintiffs,” rather than the new version, which did not. The Georgia Court of Appeals, although stating that the appellant’s argument “suffice[d] to prevent this issue from being abandoned,” further found that even if it had been abandoned, this error was “clearly” “of such nature and magnitude as to constitute a plain error of which an appellate court can take notice sua sponte.” Id. at 125.

Breach of decorum held not plain error

In Smith v. State, 288 Ga. 348, 349 (703 SE2d 629) (2010), the defendant argued that the trial court had erred in allowing the prosecutor to “dim the lights in the courtroom, bring out a cake with lit candles, and sing ‘Happy Birthday’ to the deceased victim [a child] during her closing argument.” The Georgia Supreme Court did not consider the error, even though it found the prosecutor’s “antics…highly inappropriate,” id. at 354, because the defendant’s attorney had not objected. Two justices dissented, and would have held that “the trial court’s breach of its duty to maintain decorum in the courtroom” required plain error review. Id. at 357 (Hunstein, C.J., dissenting).

Void or illegal decisions

Court decisions that are void or illegal may be overturned even if the appellant never raises the error (in the trial court, on appeal, or in a later proceeding). Examples of such decisions include criminal convictions that were not properly merged, see Nazario v. State, 293 Ga. 480 (746 SE2d 109) (2013), or decisions made by a court that did not have jurisdiction.

“Plain legal error”

Although they sound similar, plain error and “plain legal error” are unrelated concepts. See Foundations > Standards of Review > De Novo.

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