United States v. Olano

Rule 52(b) creates a limited exception to the ordinary rule that a party forfeits a claim by failing to make a timely objection. It permits, but does not require, an appellate court to correct a forfeited error. The Rule therefore establishes a single category of forfeited-but-reversible error: an error that is plain and affects substantial rights.

An "error" is a deviation from a legal rule, provided the defendant did not waive the rule. Waiver is the intentional relinquishment or abandonment of a known right; forfeiture is merely the failure to assert a right in time. A waived right generally leaves no error to correct, while a forfeited claim may still be reviewed under Rule 52(b). The Court assumed, without deciding, that Rule 24(c)'s discharge requirement was not waivable and thus that an error occurred here.

An error is "plain" when it is clear or obvious, at least under current law. The Government essentially conceded that allowing the alternates to remain during deliberations plainly violated Rule 24(c).

To affect substantial rights, an error ordinarily must be prejudicial: it must have affected the outcome of the district-court proceeding. In ordinary plain-error cases, the defendant bears the burden of showing prejudice. That allocation differs from preserved-error review under Rule 52(a), where the Government ordinarily bears the burden of showing that an error was harmless.

Even when an unwaived error is plain and affects substantial rights, Rule 52(b) gives the appellate court discretion rather than imposing a duty to reverse. The court should ordinarily exercise that discretion only when the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Because the respondents did not establish prejudice, the Court did not need to decide whether correction would have been warranted under that final discretionary standard.

Rule 24(c) expressly required alternate jurors who did not replace regular jurors to be discharged once the jury retired. Thus, allowing the alternates to enter the jury room was a deviation from the Rule. But a violation of that procedural requirement did not itself establish the prejudice Rule 52(b) ordinarily demands.

Jury secrecy serves primarily to protect deliberations from improper influence. The Court's prior cases generally assess outside influences on a jury by asking whether they were prejudicial, rather than treating every intrusion as grounds for automatic reversal. The mere fact that an alternate was present did not justify abandoning that ordinary inquiry.

The alternates' presence could theoretically prejudice a defendant in two ways: an alternate might actually participate, verbally or nonverbally, or the alternate's presence might chill the regular jurors' candid discussion. But the respondents made no specific showing that either alternate participated or that the regular jurors' deliberations were restrained. They also never requested an evidentiary hearing to develop such proof.

The Court declined to presume prejudice. Until deliberations, the alternates had been indistinguishable from the regular jurors: they took the same oath, heard the same evidence, and received the same instructions. When deliberations began, the judge twice instructed them not to participate, and courts ordinarily presume that jurors follow their instructions. The bare possibility of nonverbal participation or a chilling effect was insufficient to overcome that presumption.

Because this was an unpreserved claim, the respondents—not the Government—had the burden to show prejudice. They failed to carry it. The Ninth Circuit therefore lacked authority under Rule 52(b) to vacate the convictions on the ground that alternates had been present during deliberations.