Appellate courts may occasionally conduct “plain error” review of issues which were not properly preserved for appeal at the trial court level. To review an issue for plain error, a set of criteria must be met, which include that the record must clearly establish what happened, a clear and unequivocal rule must be breached, a substantive right of the accused must be adversely affected, the issue must not have been waived for tactical reasons, and that consideration is necessary to do substantial justice. In the recent Tennessee case of State v. Guilfoy, M2012-00600-CCA-R3-CD (Tenn.Crim.App. 5-13-2013), the Court of Criminal Appeals declined plain error review of whether video recorded accusations by the child victims were properly admitted into evidence in a trial for rape of a child and aggravated sexual battery.

In the Guilfoy case, the Defendant, who was a close family friend of the child victims and of the victims’ mother, was accused of a number of incidents of sexual abuse, allegedly occurring while staying overnight in the same room with the victims. The Defendant denied the accusations. Though each of the victims testified at the trial, the State introduced, without objection at the time, the video recorded statements that the victims had given when interviewed about the abuse during the investigation. Though out of court statements can under some circumstances be used to impeach a testifying witness, in this case these interviews were not introduced as impeachment evidence but rather as substantive evidence to support the State’s case. This was probably in violation of the Tennessee Rules of Evidence (though not of the right of confrontation … as the witnesses did testify in court and were subject to cross examination). However, the Defendant did not object at trial. The interviews were not played during the trial, apparently because the court lacked the equipment to play the video recordings in the courtroom. The jury was told if they wanted to see the interviews, a television could be provided in the jury room where they could view them.

When the Defendant raised this issue on appeal, the Court of Criminal Appeals considered it waived for failure to object to admission of the evidence at trial. The Court also declined plain error review, concluding that there was no evidence in the record that the jury ever viewed or heard the interviews, as there is no indication they ever requested to view them or requested the equipment to do so.

For more information on plain error review, and how to avoid it by preserving potential appellate issues at the trial court level, contact The Lanzon Firm.