Legal Research on Rule 52

    'RocL,l)LlRE

.harged on httr'
,r of innrxcttcc.
htrgc was given

r;rrrl beittg ntcrclY
i'scnce of proncr
.rruction. Atkins

lrr) 240 F2d 849,

.ld 1136, 77 S Ct
t:d 2d l54l' 77 S

otrrt from laking
rrng Allen charge
rratlon with time
r()n was reversible
,,rtunity to object
, rcquest curalive
,orrable portion of
I States v Taylor
rch den (CA Fla)

' us 947, 46 L Ed

ry
, 'li jury and an-
(ltlerY COnCernlllS

rurd clemency for
,rriy harmless irrcg'
'llure to object was
rates v Krulewitch
,{1, revd on other
I 790, 69 S Cr 716.

rrducl irt failing to
lrscuss case during
,rs'rr to altention of

rettdered, but nas
.c counsel immedi-
: t() jury, contention
e,l of fair trial bY

c r cjected. United
Mo) 502 F2d 615'

r,t 2d 396, 95 S Cr

lury during discus'
.c did not constltutc
,,c counsel did n<x

(1. Beaty v Unitcd
I F'2d 712, vacatcd

. qe t. Ed 710, 75 S

'ronal cases that de
I rnterpose no objcc'

'r'cn returned objecl
,tx'r remorks lo Jury.

GpNpRal PRovrsroNs

Oc}oa v United Stares (194g, CA9 Cal) 167 F2d
341.

lnrproper remarks of prosecution ncctl not be
re_vrewcd where no objection was madc at time.
Myres v Unired States (t949, CA8 Mo) I7a FiJ
329,-cert den 338 US 849, 94 L Ed SZO, ZO S Ct9l; Sikes v Unired Srates (t96O, CAs Fla) 279
F2d 561; Unired States v Di Silvesrro Og;;, Dt.
Pa) 147 F Supp 30O.

^ 
Alleged error relating to remarks made by

Government counsel in his closing argument t;jury was not preserved for reriiw -*f,".. ,.
objection was made to it, no ruling of trial court
was provoked, and trial court was not afforded
lny opportunity to cure it by rebuke or other_
wisc, which it might have done if it was harmful
and if such action had been requested. Allen v
Unired states (t951, cAj Ga1 tiz Fzd slo.

Claim of defendant that trial judge committed
crror in permitting counsel foi G6vernment in
his argument_to jury to make 

".rtuin 
gr*.i,

rmproper and prejudicial remarks ,nui not
ground for reversal of judgment of conviction
*hcre defendant made no objection to instances
rcferred to at time of their occurrence and trial
4ldge w.as not .requested to instruct .1r.y to
disregard remarks. O'Malley v United Siates
(1955, CAI Mass) 227 F2d,332, cert den 350 Ui
966, 100 L Ed 838, 76 S Ct 434.

. 
Even if remarks by United States Attorney in

closing argument were objectionable, defenjani
cennot complain about it on appeal where no
objcction was made at time oi- later and no

Rule 52

instructr()n rcltting to it was rcqucstcd. Holt v
Unitcd Stotcs ( I959, CAg Cal) 272 F2.t 272.

.When prosccutor during closing argument in-
advertently quotcd from proposed jury insrruc-
tion which.had previously'Ueen rejectej UV 

""ri,and no objection was taken then or aftlr jury
had rerired and. no requesr was made to Uilni
lury back or otherwise correct error, point *ai
waived. United Srares v Reina (1971, baS Cull
446 Fzd 16..

23. Miscellaneous matters

.. 
Defendant waives objection to joinder of in-

dictments by failing to object in Iiistrict Court.
Er,ving v Unired Srates (1967, CA9 Cal) J86 F2J
10, ccrr dcn 390 US 991, t9 L Ed Za ;ZSS, A8 icr 1t92.

Where court directed that alt witnesses re-
quested by defense be interviewed by Govern_

1n:nt agenrs bcfore hearing was held concerning
defendant's application for subpoenas and de]
fendant's counsel did not obj;ct, ana wnere
during second hearing after court's denial of
subpoenas, defendant obtained subpoena for ad-
ditional witness and informed court that with
such writ all witnesses necessary for his defense
would be present, defendant may not repudiate
position taken in lower court and urge ttrat court
violated Rule l7(b) in denying tirn ., puit"
hearing on request for witnesi subpoenas. UnltJ
!t11a v Smith (t97r, CA5 Tex) qiO rza :tr,t, ii
ALR Fed 705, cert den 402 US 976, 29 L il 2d
t42,9t s ct 1680.

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Rule 52. Harmless Error and plain Error
(a) Harmless error. Any error, defect, irregurarity or variance which doesnot affect substantial rights shall be diiregaiaed. '
g#+j5pPil -:.1r: or, defects affecting substantial rights may be Ll S. v.

I

a they were not t to the attention of the iourt.(Dec.26, 1944, eff. 1946.)

NOTES OF ADVISORY COMMITTEE ON RULES
Note to Subdivision (a)

This rule is a restatement o-f existing law, 2g usc former $ 391 (secondsentence): "on the hearing of 3ry appial, cirtiorari, *iii 
"i 

..rii-o. motionlor a new triat. in anv ca;e, civii oi triminar, th; ;o;;-rLIl ;;;t judgment
after an examination 6r tr,. .ntii. ;;.;;;;ere the court, ;lif;r, regard totechnical errors, defects, or_ _e_xceptions which ao noi;ftt";;-;;;ubstanrialrights of the parties"; I8.USC ior',.. $sso; ..No indictment found andpresented-by a grand jury in any district 6r oth.. 

"or;t;i-rh.'uniteo statesshall be deemed insufficiinr, noi shail the trial, jrJ;;.;;; ;;;rh; proceed-ing thereon be affecred by reason or uny a"L"t 6r i-mperieciion-ii'matter or
395



Rule 52

lorm ottlv. which shall not

sinrilar prclvision is found
dure, 2& USC, APPendix'

Rule,s oF CRIMINAL PRocEDURE

tend to the prejudice of the defendant, ' .t '" A
i,; R.l.;i; Oi fr in. Federal Rules of civil Proce-

Note to Subdivision (b)

This rule is a restatement of existing law' Wiborg v United States' 163 US

632,658,l6SCtrrij'.rrsi,.;.;;'.;,i.lffiUnited
Stares, tt2 Fzd sos, icn'6;h, ;';;;;d'312 

's 
6s7' 6r s ct 729' 85 L Ed

1106, coilflrrrnrcd ro l20"ai'i'ii,-""iiioi-, denied 314 US 627,62 s ct lll'
86 L Ed 503. Rule zz'Ir'ti'I n'rlt 

"rthe 
Supreme.Cgu.lt' 29 

YS.9 
foll $ 354'

providcs that errors ";;;;t;fi;d 
*itt Ut diiregarded' "save as^the court' at

its ontion, may notlce a plain error not-uiiign"a'or specified." Similar

;:";!i;;:'r;.?fr"i'i" ,r," iui", oi r.""ral circuii courts of appeals.

CROSS RE}'ERENCES

Errors in ruling upon matters in abatement' 28 USCS $ 2105" 
'

F;;;; '"f'"ppErrrr. 
";;;-i; umr-, modifv. vacate, set aside, or reverse

judgnrent, decree, "t 
;;;;; oiro*tt to'rt' 2.ti USCS $ 2106'

Harmless error on n.otft "i"ppt"t 
or certiorari' 28 USCS $ 2lll'

Habeas corpus, 28 USCS SS 2241-22))'
Harmless error rn .,iir"pttXtlt?i'ei- uscs Rules of civil Procedure' Rule

$1..o, ,.tuting to instructions to jury' USCS Rules of Criminal Procedure'

,t:

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{,

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.t:

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Rule 30.
ftlli ii, in criminal cases, USCS Rules of Criminal l:*'l:ilt'?rL?;
U,'.Y'Ji^';i:;il*"ll' ffi;i;;;""il; ;; ;ffi'"r ie"ora' uscs Rures or

f-.iminel Procedure. Rule 36. - , .fl
a€lfil,1j'i;illJi;#rl'L'r3p !.yres gr c-liminar procedure- \ure 5fl
-?lain error not ,r.,li.'ita"in";t;;i'' 5'p-*" court' USCS Rules of

Fi::"*:'.'.:? ".i:ffi;:#i;;i"1;;i', i,p-*" court, USCS Rures or court'

suf..rn. Court itule 40(l)(dX2)'

RESEARCH GUIDE

Am Jur:
I Arn f rt 2d, Aliens and Citizens $ I l0' --; il i;; za,.qppeal and Error $$s+s' 777-7e2' 798' 815'

2l Am Jur 2d, Criminal Law $ 299'

32 Am Jur 2d, f"o..uiptu"tic"e and Procedure $$ 397-400' 424'

40 Am Jur 2d, Homicide $ 560'

4i il Jur 2d, Indictments and Informations $ 314'

76 Am Jur 2d, Trial $ 109'

Am Jur Trials:
)ti'e,- lr. Trials l, Federal Habeas Corpus Practice'

ffiffi for new trial, USCS Rules of criminal procedure, Appendix of

Forms, Form 23.

7 Federal Procedural Forms L Ed' Criminal Procedure $$ 20:1029 et

seq.

Annotations:
What issucs will thc Sullrcnte Court cortsider' though not' or not

pr"iiitrv,'irit.a'iiv thc paitics' 42 L Ed 2d e46'

396



]EDURE

.."A
Proce-

16] US
United

15LEd
('t I I I,

'll ti 354'
'ourt, at
Similar

,r reverse

lure, Rule

l)rocedure'

ule 33.
S Rules of

51.
's of Court,

ppendix of

20:1029 et

trrlt, or not

GeNr,Rar- PnovrsroNs Rule 52

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14.

Construction and application of Rules 4G-42 of Rules of Supreme
Court prescribing requirements of briefs. 38 L Ed 2d 857.
Supreme Court cases determining whether admission of evidence at
criminal trial in violation of Federal Constitutional Rule is prejudicial
error or harmless error. 3l L Ed 2d 921 .

Petit jury recommendations for leniency in federal prosecutions. 33
ALR Fed 774.
Instruction on burden of proof as to defense of entrapment in federal
crinrinal case. 28 ALR Fcd 767.
Voir tlirc cxlntinalion ol'pros1'rcctivc jurors urrdcr Rulc 24(l) of Fcderul
Rulcs of Crinrinal Proccdurc. 28 ALR l:cd 26.
Necessity of, and prejudicial effect of omitting, cautionary instruction
to jury as to accomplice's testimony against defendant in federal
criminal trial. l7 ALR Fed 249.
Prejudicial effect of federal district court reporter's omissions in record-
ing judicial proceedings, wherc such omissions constitute failure to
comply with Court Reportcr Act. 28 USCS $ 753(b). l2 ALR Fed 584.
Propriety and prejudicial effect of instruction, in federal criminal trial,
that witnesses are presumed to tell the truth. 8 ALR Fed 319.
Propriety and prejudicial effect of federal judge's expressing to jury his
opinion as to defendant's guilt in criminal case. 7 ALR Fed 377.
Necessity and sufficiency of government attorney's signature on indict-
ment or information (Rule 7(c) of Federal Rules of Criminal Proce-
dure). 5 ALR Fed 922.
Federal practice: Trial court's permitting codefendant to change his
plea of not guilty to guilty as error against defendant. 3 ALR Fed 444.
Violation of federal constitutional rule (Mapp v Ohio) excluding
evidence obtained through unreasonable search or seizure, as constitut-
ing reversible or harmless error. 30 ALR3d 128.
Violation of federal constitutional rule (Griffin v California) prohibiting
adverse comment by prosecutor or court upon accused's failure to
testify, as constituting reversible or harmless error.24 ALR3d 1093.
Prejudicial effect of statement of prosecutor as to possibility of pardon
or parole. l6 ALR3d I137.
Prejudicial effect of statement or instruction of court as to possibility of
parole or pardon. l2 ALR3d 832.
Prejudicial effect of statement of court that if jury makes mistake in
convicting it can be corrected by other authorities. 5 ALR3d 974.
Prejudicial effect of statement of prosecutor that if jury makes mistake
in convicting it can be corrected by other authorities. 3 ALR3d l,+48.
Propriety, and prejudicial effect of, comments by counsel vouching for
credibility of witness.8l ALR2d 1240.
Prosecuting attorney's reference to defendant's failure to testify as
prejudicial. 84 ALR 784.

Texts:
6 Orfield, Criminal Procedure under the Federal Rules $$ 52:l et seq.

Law Review Articles:
Saltzburg, The Harm of Harmless Error. 59 Va L Rev 988.
Principles for Application of the Harmless Error Standard. 4l U of
Chicago L Rev 616.

397