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Today the District of Columbia Court of Appeals issued an opinion reversing the felony threats conviction of a client of Matthew B. Kaplan, The Kaplan Law Firm’s Principal Attorney.  The government had argued that our client had threatened another person by asking that person, during the course of an argument, “What if I shoot you?” and “What if I shoot your car?”  The Court of Appeals—D.C.’s highest “state” appellate court—agreed with our argument that these words are not self evidently threats and that the trial court made a mistake by not instructing the jury that, in order to convict, it was required to find that our client intended these words to be threats.

There was, however, a complication.  Our client’s trial attorney had not asked the trial judge to give such an instruction.  In most appellate settings that would have been the end of the matter—it is a fundamental principal of appellate law that an appellant generally cannot successfully argue that a trial court made a mistake unless that mistake was brought to the trial court’s attention at the time the mistake was made.  (The reasoning being that trial courts should be allowed to correct any mistakes before they become appellate issues.)  In this case, however, the  Court of Appeals agreed that the error was so serious that the “plain error” doctrine should be applied to excuse the failure to raise this issue before the trial court.

The case is Malloy v. United States.  Its outcome is somewhat unusual:  in criminal cases the overwhelming majority of appellate decisions are decided in the government’s favor.  Decisions that reverse a conviction in its entirety (as this decision does) are relatively rare and rarer still are cases in which such reversals are based on the plain error doctrine.