What is the test for plain error affecting substantial rights?

MultiRegion, United States of America

The following excerpt is from U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994):

We therefore review the case for plain error affecting substantial rights. United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993); United States v. Sterner, 23 F.3d 250, 251 (9th Cir.1994). Assuming without deciding that substantial rights were at issue here, we see no plain error. When a court is informed that a juror may have failed to disclose a

Page 1443

G. Prosecutorial Misconduct

Appellants argue that several statements made by the prosecution during its rebuttal closing argument were improper and prejudicial. Because appellants did not make a contemporaneous objection to any comments they now challenge, we review their claims for plain error. United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985). "A plain error is a highly prejudicial error affecting substantial rights." United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir.1992) (internal quotations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993).

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