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No More Mandatory Plain Error Review in Alabama Death Penalty Appeals

Updated: Jan 25


Since 1978, Alabama Rule of Appellate Procedure 45A has provided that the Court of Criminal Appeals must conduct a plain error review in all death penalty appeals, even where the appellant did not raise the issue before the trial court. On January 12, 2023, however, the Alabama Supreme Court amended the rule to eliminate this requirement. The rule change is effective immediately.


Rule 45A, Ala. R. App. P., now says:


“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals may, but shall not be obligated to, notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.” (emphasis added).


The amendment brings the rule in line with Alabama common law, federal law, and the law of sister states. The court reasoned that the change is needed to eliminate the vast amount of time it takes the appellate court to review each death penalty appeal. The court also noted that defendants in such cases still have a remedy – they can file a petition for postconviction relief pursuant to Alabama Rule of Criminal Procedure 32.


Justices Shaw, Wise, and Bryan dissented. Justice Wise called for a review of Rule 45A by the Court of Criminal Appeals, the Alabama Supreme Court Standing Committee on the Alabama Rules of Appellate Procedure, and the Alabama Supreme Court’s Standing Committee on the Alabama Rules of Criminal Procedure.

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