concluding that improper comments by the State constituted plain error because they were “not merely ‘a slip of the tongue’ during closing argument” but rather “occurred repeatedly and in different forms at several junctures of the trial” and were “highly prejudicial, largely inadmissible, and cloaked with judicial approval”
How later courts described this case
- concluding that improper comments by the State constituted plain error because they were “not merely ‘a slip of the tongue’ during closing argument” but rather “occurred repeatedly and in different forms at several junctures of the trial” and were “highly prejudicial, largely inadmissible, and cloaked with judicial approval”
- holding that an expert witness cannot testify as to a defendant's intent
- stating that to prove a violation of Wis. Stat. § 346.63(l)(a), the State must prove that the defendant *86 was under the influence of an intoxicant at the time the defendant drove on a highway
- holding that the State had not met its burden of showing that Confrontation Clause violation was harmless beyond a reasonable doubt
Written by the judges who cited it.
The opinion
*173 SHIRLEY S. ABRAHAMSON, C.J.
¶ 55. (concurring). The plain error doctrine permits judicial review of an error affecting substantial rights, despite a party's failure to object to the error. See Wis. Stat. § 901.03 (4). I agree with the majority opinion's holding that the unobjected-to errors in the present case constitute plain error. I write separately in order to clarify the plain error analysis.
¶ 56. Under a plain error analysis, as I understand it, a defendant must show (1) that there was an error, and (2) that the error is "plain" (that is, "obvious" or "clear"). The State then must show that the error is harmless, that is, that the error does not affect substantial rights. 1 This analysis sets forth a procedure in which the court first identifies the error, then determines whether the error is obvious or clear, and finally determines whether the error affected substantial rights.
¶ 57. These three steps comply with the text of Wis. Stat. § 901.03 (4), governing plain error, which provides as follows:
Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.
¶ 58. The majority opinion concludes that an error constitutes a "plain error" when the error is "fundamental, obvious, and substantial" and when the State fails to meet its burden of proving that the error is *174 harmless. 2 The majority opinion's requirement that an error be "fundamental" and "substantial" seems to render redundant the separate requirement that the error not be harmless. What is a fundamental and substantial error? Can a "fundamental" and "substantial" error also be harmless?
¶ 59. Confusion in determining when plain error exists is not surprising. Wisconsin courts long have struggled to define what constitutes a "plain error." As this court acknowledged in State v. Sonnenberg, 117 Wis. 2d 159 , 344 N.W.2d 95 (1984), defining "plain error" is difficult, if not impossible. 3
¶ 60. The majority opinion rightfully notes that there is no bright line test for when an error constitutes "plain error" or when reversal is mandated. 4 Rather, courts must weigh the particular facts of each case to determine whether reversal is warranted. 5 To that end, I would follow the analysis I have set forth: Plain error may be found when the court's overall conclusion is that there was error; the error is obvious; and the State fails to meet its burden of proving that the error did not affect substantial rights.
¶ 61. For the reasons set forth, I write separately.
¶ 62. I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR. join this opinion.
Wisconsin law on plain error differs from the federal analysis in one important respect, namely that in Wisconsin the burden is on the State to show that the error is harmless. See State v. Mayo, 2007 WI 78, ¶ 29 , 301 Wis. 2d 642 , 734 N.W.2d 115 ; United States v. Olano, 507 U.S. 725, 734-35 (1993).
Majority op., ¶¶ 20-23.
State v. Sonnenberg, 117 Wis. 2d 159, 177 , 344 N.W.2d 95 (1984) (citation omitted).
See majority op., ¶ 22 (citing Mayo, 301 Wis. 2d 642, ¶ 29 ).
See majority op., ¶ 22.