RULE 52. HARMLESS
ERROR AND OBVIOUS ERROR
(a) Harmless Error. Any error, defect, irregularity or variance
that does not affect
substantial rights shall must be disregarded.
(b) Obvious Error.
Obvious errors or defects affecting An obvious
error or defect that
affects substantial rights may be noticed although they were
considered even though it was
not brought to the court's attention of the court.
Rule 52 was amended, effective March 1, 2006.
Rule 52 is adapted
in the language of Rule 57 of the Uniform Rules of
of the National Conference of Commissioners on Uniform State Laws (1952) and differs
from the Federal Rule from Fed.R.Crim.P. 52 and differs only in the
substitution of the word
"obvious" error for "plain" error. This Rule rule applies to both the
trial courts and the
appellate courts. If the initial action of the trial court was correct, Rule 52 has no application.
If, however, the original action was incorrect, three types of error may be assigned for review
by the appellate court. These are: (1) harmless error or error not prejudicial to the defendant;
(2) reversible error or error that was prejudicial and to which objection was made in the trial
court; and (3) obvious error or error so fundamental that a new trial or other relief must be
granted even though the action was not objected to at the time. [See Wright, Federal
and Procedure, § 851, page 349 (1969).]
Subdivision (a) provides that any error, defect, irregularity or variance that does not affect
substantial rights of an accused
shall must be disregarded. To
determine whether error
affecting substantial rights of the defendant has been committed, the entire record must be
considered and the probable effect of the error determined in the light of all the evidence.
Generally speaking, however, an error of constitutional dimensions is more likely to be
found prejudicial than ordinary errors. Before a Federal federal
constitutional error may be
held harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt. [Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705,
A.L.R.3d 1065, rehearing denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241
Generally, it may be said that the defendant has the burden of showing that a technical error
has affected his substantial rights [Black v. United States, 309 F.2d 331 (8th Cir. 1962),
denied, 372 U.S. 934, 83 S. Ct. 880, 9 L. Ed. 2d 765 (1963)] , but that if the
fundamental, or of such a character as would normally prejudice substantial rights, the
burden is on the prosecution to demonstrate its harmlessness. [Bihn v. United States,
U.S. 633, 66 S. Ct. 1172, 90 L. Ed. 1484 (1946)] [See Wright, supra, § 854, pages
Subdivision (b) provides that obvious errors affecting substantial rights may be noticed
even though they were not brought to the attention of the court. But the power to notice
obvious error, whether at the request of counsel or on the court's own motion, is one the
courts should exercise cautiously and only in exceptional circumstances. The power should
be exercised only where a serious injustice has been done to the defendant.
Federal Practice and Procedure, § 856, pages 372-374 (1969).]
Rule 52 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of April 28-29, 2005, pages 10-11;
February 20-23, 1973, page 11; December 10-12, 1970, pages 15-17;
Fed.R.Crim.P. 52 , page 399; Wright, Federal Practice and Procedure: Criminal, §
851-856 (1969); 8A Moore's Federal Practice, Chapter 52 (Cipes, 2d Ed. 1971); Rule 57,
Uniform Rules of Criminal Procedure, drafted by the National Conference of Commissioners
on Uniform State Laws (1952).
SUPERSEDED: N.D.C.C. § 29-28-26.
CROSS REFERENCE: N.D.R.Civ.P. 61 (Harmless Error).