US SUPREME COURT DECISIONS

Respondent was charged with various federal offenses involving a scheme to defraud a refinery by submitting false certifications that oil purchased by the refinery from respondent's company was crude oil when in fact it was less valuable fuel oil. At the trial in District Court, defense counsel in his closing argument impugned the prosecutor's integrity and charged that the prosecutor did not believe in the Government's case. No objection to defense counsel's summation was made at the time, but in rebuttal arguments, the prosecutor stated his opinion that respondent was guilty and urged the jury to "do its job"; defense counsel made no objection. Respondent was convicted on several counts, and on appeal alleged that he was unfairly prejudiced by the prosecutor's response to defense counsel's argument. The Court of Appeals reversed and remanded for a new trial, holding that, under case law of that Circuit, such remarks constituted misconduct and were plain error, and that appellate review was not precluded by defense counsel's failure to object at trial.

Held: The prosecutor's remarks during the rebuttal argument, although error, did not constitute "plain error" that a reviewing court could properly act on under Federal Rule of Criminal Procedure 52(b), absent a timely objection by defense counsel; on the record, the challenged argument did not undermine the fairness of the trial. Pp. 470 U. S. 6-20.

(a) The kind of advocacy on both sides as shown by the record has no place in the administration of justice, and should neither be permitted nor chanrobles.com-red

Page 470 U. S. 2

rewarded; the appropriate solution is for the trial judge to deal promptly with any breach by either counsel. Pp. 470 U. S. 6-11.

(b) The issue is not the prosecutor's license to make otherwise improper arguments, but whether his "invited response," taken in context, unfairly prejudiced the defendant. Lawn v. United States, 355 U. S. 339. In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's conduct. The impact of the evaluation has been that, if the prosecutor's remarks were "invited" and did no more than respond substantially in order to "right the scale," such comments would not warrant reversing a conviction. Pp. 470 U. S. 11-14.

(c) The plain error exception of Rule 52(b) to the contemporaneous objection requirement is to be used only in those circumstances in which a miscarriage of justice would otherwise result. Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claimed error against the entire record. When reviewed under these principles, the prosecutor's remarks in this case did not rise to the level of plain error. Viewed in context, the remarks, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice. Pp. 470 U. S. 14-20.

736 F.2d 565, reversed.

BURGER, C.J.,delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 470 U. S. 20. STEVENS, J., filed a dissenting opinion, post, p. 470 U. S. 35.