When counsel fails to object to alleged misconduct at the time it occurs, what standard of review applies?

MultiRegion, United States of America

The following excerpt is from U.S. v. McWilliams, 730 F.2d 1218 (9th Cir. 1984):

3 Ordinarily, when counsel fails to object to alleged misconduct at the time it occurs, we apply the "plain error" standard of review. United States v. Berry, 627 F.2d at 199. This is so because, in the absence of an objection, the trial court is given no opportunity to correct the alleged error and, "[t]he defendant may not allow error to go uncorrected and then ask this court to reverse this conviction." Id. Where a trial judge recognizes error and acts on his or her own initiative to correct the error, the justification for review under the "plain error" standard is inapplicable. Under these circumstances, we will review an allegation of error on appeal under the harmless error rule applied in cases where proper objection has been made. See id. (indicating circumstances where a failure to object will not result in application of the plain error standard).

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