Claim of Unpreserved Error
In People v. Carines, 460 Mich 750, 774; 597 NW2d 130 (1999), the Supreme Court, relying on United States v. Olano, 507 U.S. 725; 113 S. Ct. 1770; 123 L. Ed. 2d 508 (1993), set forth a stringent standard to be applied by the Court before setting aside a conviction on a claim of unpreserved error:
To avoid forfeiture under the plain error rule, three requirements must be met:
error must have occurred;
the error was plain, i.e., clear or obvious;
the plain error affected substantial rights.
The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.
"It is the defendant rather than the government who bears the burden of persuasion with respect to prejudice."
Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse.
Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error "'seriously affected the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence." Carines, supra at 763-764.