Sweeping Down the Plain: A Modern Rule for Direct Review in Oklahoma Criminal Appeals

The overriding purposes of the Oklahoma Court of Criminal Appeals on direct review are like those of most appellate courts: (1) affording proper relief for harmful violations of the rules of the game (1) and (2) minimizing future errors through precedents. (2) This paper proposes a rule for modernizing direct review (3) of errors in Oklahoma criminal appeals in order to further those purposes. The new rule would better define the errors cognizable by the Court on direct review; abolish plain-error review of unpreserved errors in favor of Strickland analysis; and codify a uniform legal standard of harmful effect (i.e., prejudice) warranting appellate relief. Direct review is simply the first stage of appellate review after a criminal conviction. The Court at this stage weighs the merits of two general classes of alleged errors: errors "preserved" by timely objection on specific grounds in the court below; and "plain" (a.k.a. fundamental) (4) errors, waived (or forfeited), (5) and thus insulated from ordinary review by defense counsel's failure to timely object. (6) The Court has developed over time a fairly specific description of error and its harmful, reversible subclasses. Preserved or not, error is a deviation from law, a breach of the underlying rules of the game. (7) Plain error (1) is unpreserved--that is, forfeited or waived--error that (2) is obvious from the record and (3) affects the outcome of the proceeding. (8) The harmless-error statute and longstanding case law dictate that only harmful (which is to say prejudicial) errors, those affecting the outcome of the relevant proceedings, warrant reversal, modification of judgment or sentence, or remand for re-sentencing. (9) Preserved error is generally reversible when it "has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." (10) In plain-error doctrine, the Court has sought to avoid a "draconian" rule of total forfeiture of serious error, on the one hand, and the misguided approach of reversing "every time an error might prejudice a case," on the other. The prejudice standard for plain error is therefore "prejudice/injury plus," (12) effectively meaning that a remedy for harmful plain error remains discretionary with the appellate court, not mandatory. (13) Only "very" injurious plain errors that compromise important judicial values--errors that '"seriously affect the fairness, integrity or public reputation of judicial proceedings"--warrant relief. (14) Effective defense lawyers strive to formulate timely motions and interpose contemporaneous objections seeking compliance with the rules of the game, resulting either in the desired relief or the preservation of trial-court error. (15) The tactical penalty for failure to object is a finding of waiver, and in ethical as well as constitutional terms, it is possibly ineffective representation as well. (16) So competent trial counsel raise formal challenges to the investigations, the charges, the procedures, the evidence, and the trial tactics of the opposition, theoretically offering a robust opportunity for the trial court's discovery, and timely correction, of its (or the State's) errors. (17) Trial and appellate counsel these days are rarely one and the same; and the latter are rarely content to assert a handful of errors preserved by the former. Appellate lawyers typically raise the errors preserved below and their own allegations that someone violated the rules of the game, the latter both as freestanding assignments of plain error and as corresponding allegations of ineffective assistance of counsel. (18) Indeed, appellate counsel sometimes assert plain error without raising ineffectiveness at all, (19) though the approach is at best contradictory, and perhaps its own kind of ineffective assistance. (20) Coupled with their sixth amendment cousins or not, allegations of plain error today comprise perhaps the greatest number of claims presented for review. …