In arguments in Greer v. United States, the justices used hypothetical situations to examine where to draw the line between what evidence can and cannot be considered by an appellate court when reviewing a case to decide if an error impacted the fairness of a trial. But they appeared to push back on the notion that a court can't look outside the trial record at all.
There are multiple possible errors that could be made before a jury is impaneled, including regarding witnesses and limitations on questioning, Justice Stephen Breyer pointed out.
"I mean the possibilities are endless. So where does this idea come from, you can only look to certain things?" he asked the attorney representing petitioner Gregory Greer.
Greer was convicted of possessing a firearm while a convicted felon. At his trial, the government wasn't required to prove Greer knew he was barred from possessing a firearm, and the jury wasn't instructed that that knowledge was an essential element of the offense, according to briefs filed in the case.
After his conviction, the Supreme Court issued its opinion in Rehaif v. U.S.
, ruling that when prosecuting a defendant for possessing firearms while a felon, the government must prove the defendant knew he couldn't own a firearm because he was a felon at the time of the crime.But the Eleventh Circuit refused to vacate Greer's conviction or grant him a new trial, finding that a presentence report outlining Greer's five prior felony convictions, which had not been presented to the jury, showed Greer had not been prejudiced by the error.
The appeals court should not have been able to look to that presentence report in making its determination, however, because it wasn't prepared until after the trial, M. Allison Guagliardo, an assistant federal defender arguing for Greer, told Justice Breyer.
Justice Breyer and the other justices seemed unconvinced.
"Suppose the defendant had written a book about his prison experience and in the book describing the 10 years he spent in prison he says, 'I was convicted of this felony,'" Justice Samuel Alito posited, just one of many hypotheticals to come from the justices. "Could the court look at any of those?"
No, Guagliardo answered.
"I understand that it looks like that defendant may know his status. But the question is still the fairness, integrity and reputation of the proceedings," she said.
That question about the reputation of the proceedings grows out of a test for determining when a court can grant relief under the plain-error standard that was elucidated in the high court's 1993 ruling in United States v. Olano
.Under that test, a court may grant relief if there is an error, the error is plain, the error affects the defendant's substantial rights, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Several justices latched onto that last prong as a reason why an appellate court could be allowed to look outside a trial record when reviewing a case.
Justice Alito, for instance, wondered what the effect on the public's perception of the integrity of the legal system would be if a court were to order a new trial for a defendant who clearly knew he had been a convicted felon when he possessed a firearm.
Justice Sonia Sotomayor later said that what the public would look at when evaluating whether a trial was fair isn't just the trial but the entire proceeding.
"I don't see why a judge can't look at the facts of a particular case from beginning to end to determine whether the public would have seen this as an injustice," Justice Sotomayor said.
She pointed out that Greer had been released from prison only six months before he was arrested for possessing a firearm. "It's impossible to believe that there's any reasonable doubt that he could have put his knowledge in contention," she added.
Justice Amy Coney Barrett chimed in on the difference between prongs three and four of the plain-error analysis — prong three refers to what a jury thinks and prong four concerns what the public thinks, she said.
"Essentially under your analysis, we just stop at step three because if it would have led to a different result, then there's no need really to do anything different at step four," Justice Barrett said.
Guagliardo insisted that that's the wrong question. The question is not whether prongs three and four are met in an individual case, she said, but "is it fair and [does it] further the integrity and reputation of the proceedings for an appellate court to affirm a defendant's conviction even if the evidence at his trial is not sufficient?"
The justices seemed less skeptical of the government's position that an appellate court can look outside the trial record when reviewing a case for plain error. But they did question the government's attorney at length about what evidence can be considered and what can't.
Chief Justice John Roberts asked if a reviewing court could consider evidence of a hypothetical discussion between two prisoners in which one prisoner said that the defendant had admitted to knowing he was barred from having a gun.
"Can they just look at that or does it depend upon the admissible nature of the evidence?" Justice Roberts asked Assistant to the Solicitor General Benjamin W. Snyder, arguing for the government.
It would depend on the admissible nature of the evidence, Snyder said, but if an error-free trial or a new trial ordered on remand would have included that evidence, the appeals court could consider it.
Justice Breyer pushed Snyder harder to draw a distinct line for the justices.
"Surely there is some limit about what the court of appeals could look to. How would you describe it?" the justice asked.
But when Snyder tried to respond, the justice interrupted.
"If you were me, what words would you write in the opinion to describe when it goes too far and when it doesn't?" Justice Breyer pushed.
"We haven't thought of a specific formulation," Snyder said.
The Seventh Circuit has already drawn a line between all the evidence in the record of a case and other evidence outside the record, Justice Barrett pointed out. The Seventh Circuit's line would exclude things like Justice Alito's hypothetical book but would include a presentence report, like the one in Greer's case, she said.
"What would be wrong with that?" she asked Snyder. The presentence report would include the list of the felonies and the lengths of the sentences, she said. "Why does the government want more than that?"
Snyder replied that the government isn't asking for more than that, at least in this case, but that he wouldn't want to foreclose the possibility of a court looking to evidence beyond that in other cases. The justices don't need to address those possibilities here, he said.
"So you would be happy with a decision that said that the court of appeals can go outside of just what the jury saw, what was before the jury, and consider other record evidence like, for example, the PSR, and just not say anything about whether it's possible … for the court of appeals to go beyond that?"
"Yes, we'd be happy with a decision that said that," Snyder said.
Greer is represented by M. Allison Guagliardo, James T. Skuthan, Meghan Ann Collins, Rosemary Cakmis, Lynn Palmer Bailey, Conrad Kahn and Katherine Howard of the Office of the Federal Public Defender, Jeffrey T. Green and Sam H. Zwingli of Sidley Austin LLP and Claire Labbe of Northwestern Supreme Court Practicum.
The U.S. is represented by acting Solicitor General Elizabeth B. Prelogar, acting Assistant Attorney General Nicholas L. McQuaid, Deputy Solicitor General Eric J. Feigin, Assistant to the Solicitor General Benjamin W. Snyder, and Joshua K. Handell and David M. Lieberman.
The case is Gregory Greer v. U.S., case number 19-8709, in the U.S. Supreme Court.
--Editing by Nicole Bleier.