holding that to establish plain error, “[a] defendant must . . . satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different, result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” (quoting Strickland v. Washington, 466 U. S. 668, 694 (104 SCt 2052, 80 LE2d 674) (1984))
How later courts described this case
- holding that to establish plain error, “[a] defendant must . . . satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different, result is ‘sufficient to undermine confidence in the outcome’ of the proceeding.” (quoting Strickland v. Washington, 466 U. S. 668, 694 (104 SCt 2052, 80 LE2d 674) (1984))
- explaining that a district court’s failure to inform a defendant, as required in Rule 11(c)(3)(B), that, if the court failed to accept the government’s recommendation in the plea agreement, he had no right to withdraw his plea, did not alone amount to a structural error that would require reversal regardless of the error’s effect on the proceeding
- explaining that if an error is not structural, "re- lief . . . is tied in some way to prejudicial effect, and the standard phrased as ‘error that affects substantial rights,’ used in Rule 52, has previously been taken to mean error with a prejudicial effect on the outcome of a judicial proceeding"
- explaining that “where the burden of demonstrating prejudice” is on the appellant, the standard is similar to that articulated in Kotteakos v. United States, 328 U.S. 750, 776 (1946), which asks whether the error had “substantial and injurious effect or influence in determining the . . . verdict”
Written by the judges who cited it.
Later courts went against this
Questioned by George Johnson v. Steven Pinchak Attorney General of the State of New Jersey, 392 F.3d 551 (2004)
No. 03-167,-U.S. -, 124 S.Ct. 2333, 159 L.Ed.2d 157, 2004 WL 1300161 (U.S. June 14, 2004), casts serious doubt on the District Court’s holding that misinformation about maximum sentences in the plea bargaining process constitutes a structural error.
The opinion
Justice Scalia,
concurring in the judgment.
I agree with much of the Court’s opinion and concur in its disposition of the case. I do not, however, agree with its holding that respondent need not show prejudice by a preponderance of the evidence. Ante, at 83, n. 9.
By my count, this Court has adopted no fewer than, four assertedly different standards of probability relating to the assessment of whether the outcome of trial would have been different if error had not occurred, or if omitted evidence had been included. See Chapman v. California, 386 U. S. 18, 24 (1967) (adopting “harmless beyond a reasonable doubt” standard for preserving, on direct review, conviction obtained in a trial where constitutional error occurred); Brecht v. Abrahamson, 507 U. S. 619, 637 (1993) (rejecting Chapman in favor of the less defendant-friendly “ ‘substantial and injurious effect or influence’” standard of Kotteakos v. United States, 328 U. S. 750 (1946), for overturning conviction on collateral review); United States v. Agurs, 427 U. S. 97, 111-113 (1976) (rejecting Kotteakos for overturning conviction on the basis of violations of Brady v. Maryland, 373 U. S. 83 (1963), in favor of an even less defendant-friendly standard later described in Strickland v. Washington, 466 U. S. 668, 694 (1984), as a “reasonable probability”); id., at 693-694 (distinguishing the “reasonable probability” standard from the still yet less defendant-friendly “more likely than not” standard applicable to claims of newly discovered evidence). See generally Kyles v. Whitley, 514 U. S. 419, 434-436 (1995). Such ineffable gradations of probability seem to me quite beyond the ability of the judicial mind (or any mind) to grasp, and thus harmful rather than helpful *87 to the consistency and rationality of judicial decisionmaking. That is especially so when they are applied to the hypothesizing of events that never in fact occurred. Such an enterprise is not factfinding, but closer to divination.
For purposes of estimating what would have happened, it seems to me that the only serviceable standards are the traditional “beyond a reasonable doubt” and “more likely than not.” We should not pretend to a higher degree of precision. I would not, therefore, extend our “reasonable probability” standard to the plain-error context. I would hold that, where a defendant has failed to object at trial, and thus has the burden of proving that a mistake he failed to prevent had an effect on his substantial rights,' he must show that effect to be probable, that is, more likely than not.