As addressed in the previous post, "plain error" review may still occur on direct appeal for issues which were not properly preserved for appeal. The criteria for plain error review includes that the record must clearly establish what happened; a clear and unequivocal rule must be breached; a substantive right of the accused must be adversely affected; the issue must not have been waived for tactical reasons; and that consideration is necessary to do substantial justice.
In the recent case also referenced in that post, State v. Guilfoy, M2012-00600-CCA-R3-CD (Tenn.Crim.App. 5-13-2013), the Appellant sought on appeal to challenge the admissibility of the Appellant's statements made in a phone conversation between the Appellant and a victim's mother. However, the Appellant had not objected to the statements when they were introduced at trial. The Court of Criminal Appeals declined plain error review, concluding there was a reasonable inference the Appellant made a tactical decision to allow the introduction of the evidence at trial.
In the Guilfoy case, the Appellant was convicted of a number of incidents of sexual abuse of the children of a close friend. After the allegations surfaced, the victims' mother, cooperating with state investigators, recorded a phone conversation with the Appellant, in which the mother attempted to get the Appellant to admit to the abuse. The Appellant denied committing the abuse. The statements were introduced by the State during trial, without objection from the Appellant (the Appellant also had not filed or argued a pre-trial suppression motion to exclude the evidence ... but only to redact irrelevant portions).
The Appellant later sought to challenge the admissibility of the statements on appeal under plain error review. The Court of Criminal Appeals concluded that as there was no objection to the introduction of the relevant portion of the statements, and the Appellant denied committing any acts of abuse during the conversation, there was a reasonable inference the Appellant made a tactical decision to allow the evidence to be introduced unchallenged.
For more information on plain error review, and on preserving evidentiary challenges, contact Hindman & Associates.