51:5 Why So Serious? Taking the Word “Seriously” More Seriously in Plain Error Review of Federal Sentencing Appeals


When evaluating whether an error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” appellate courts should ask a simple question: “Why so serious?” The Joker’s famous question reminds defendants that they have the burden in plain error review.

This Comment attempts to answer the question “Why so serious?” by providing three tests: the Fairness Test, the Integrity Test, and the Public Reputation Test. These three tests ensure the word “seriously” is given a more definite meaning by demonstrating when unpreserved sentencing errors turn into “miscarriage[s] of justice.” First, the Fairness Test requires defendants to demonstrate an unpreserved error had an “extremely disproportionate impact” on the length of their sentence. Second, the Integrity Test evaluates a judge’s behavior to see if they have abandoned the relevant legislative guide and engaged in “derelict, craven, and irresponsible” behavior. Third, the Public Reputation Test provides four factors for analyzing errors that potentially violated a defendant’s constitutional and due process rights.

In sum, these tests are intended to help defense lawyers determine whether their clients have viable arguments on appeal for unpreserved errors in federal court. Furthermore, federal judges can promulgate these tests to ensure the word “seriously” is taken seriously enough.