United States v. Young

Justice Brennan, with whom Justice Marshall and Justice Blackmun join,

concurring in part and dissenting in part.

In his rebuttal argument to the jury, the prosecutor from the Criminal Fraud Section of the United States Department of Justice in Washington, D. C., (1) repeatedly stated his personal opinion that the respondent Billy G. Young was guilty of fraud, (2) used his prosecutorial “experience in these matters” in discussing the consequences of Young’s conduct, *21and (3) admonished the jurors that, if they voted to acquit, they would not be “doing your job as jurors.” App. 8-11. The Government would justify the prosecutor’s remarks as “invited” by the defense counsel’s own improper arguments. In reversing Young’s conviction, the Court of Appeals for the Tenth Circuit rejected this justification and emphasized that “ ‘[w]e can give no comfort to the proposition that unprofessional conduct upon the part of defense counsel opens the door to similar conduct by government counsel.’” 736 F. 2d 565, 570 (1983), quoting United States v. Ludwig, 508 F. 2d 140, 143 (CA10 1974). Accordingly, the Court of Appeals held that “improper conduct on the part of opposing counsel should be met with an objection to the court, not a similarly improper response.” 736 F. 2d, at 570.

This surely is a sensible conclusion and falls well within the authority of the courts of appeals to define reasonable rules of courtroom conduct. Because Young’s counsel did not object to the prosecutor’s misconduct, however, a reversal was proper only if the misconduct constituted plain error under Federal Rule of Criminal Procedure 52(b) — that is, if it either (1) had a prejudicial impact on the verdict when viewed in the context of the trial as a whole, or (2) “seriously affect[ed] the . . . integrity or public reputation of [the] judicial proceedings.” United States v. Atkinson, 297 U. S. 157, 160 (1936); see also United States v. Frady, 456 U. S. 152, 163, n. 11 (1982); United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 239 (1940). The Court of Appeals noted the contours of this inquiry, and its opinion could perhaps be read as implicitly concluding that the prosecutor’s misconduct substantially prejudiced the outcome of the trial or seriously affected the integrity of the proceedings. The court did not address the application of the plain-error standard to the facts of this case, however, but instead cryptically concluded that the challenged remarks “speak for themselves” and constituted “plain error.” 736 F. 2d, at 570. Accordingly, I would *22remand the case to the Court of Appeals for a proper plain-error inquiry.1

This analysis leads me to concur in much of the Court’s opinion. Specifically, I agree fully with the Court’s conclusion that federal prosecutors do not have a “right” of reply to defense improprieties, but must instead object to the trial judge and request curative action. Moreover, I join with the Court in concluding that federal courts may set reasonable rules of rhetorical conduct and that prosecutorial violations of such rules constitute error. And I concur that the judgment below cannot stand. However, I must respectfully but completely disagree with two other aspects of the Court’s resolution of this case. First, the Court appears to adopt an “invited error” analysis, under which it only grudgingly acknowledges that the prosecutor acted improperly in this case. This approach leads the Court to minimize the gravity of the prosecutor’s gross misconduct. Second, instead of remanding this case to the Court of Appeals, the Court reaches out to conduct the plain-error inquiry on its own. Even if the Court’s conclusion is correct — and I have sub*23stantial misgivings about the thoroughness of the Court’s analysis — I believe this unexplained departure from our usual practice misconceives the Court’s institutional role and constitutes poor judicial administration.

r-H

This Court only infrequently gives plenary consideration to cases involving standards of prosecutorial conduct. When we do, it is important that we attempt to set forth with clarity the standards by which federal prosecutors must guide their trial conduct.

A

The Court granted the Government’s petition for a writ of certiorari to resolve, inter alia, the question “[w]hether a prosecutor may rebut [improper] closing defense argument . . . by responsive argument that would be inappropriate in the absence of such provocation.” Pet. for Cert. (I). The Government contends that we should recognize “a prosecutor’s right to respond” to improper defense arguments and that, in light of this “right,” we should hold that such responses “are not improper” even if standing alone they would be impermissible. Brief for United States 15-16.

Today the Court rejects this asserted “right” of reply, emphasizing instead that prosecutors have no “license to make otherwise improper arguments” in response to defense rhetoric, ante, at 12, and holding that the prosecutor’s responses in this case “constituted error,” ante, at 14. See also ante, at 12 (rejecting “judicial approval — or encouragement — of response-in-kind”), 14, 16-20. As the Court observes, “[c]learly two improper arguments — two apparent wrongs — do not make for a right result.” Ante, at 11. Instead, the Court instructs, the proper recourse is an objection to the trial judge and “prompt action from the bench in the form of corrective instructions to the jury, and when *24necessary, an admonition to the errant advocate.” Ante, at 13.2

The Court today also reaffirms the authority of lower courts to define and enforce reasonable rules of prosecutorial conduct.3 As the Court notes, the prosecutor in this case departed from Tenth Circuit precedents requiring prosecutors to object to defense misconduct rather than respond in kind; this action in and of itself “constituted error.” Ante, at 14.

*25B

I fully agree with these conclusions. The Court goes on to suggest, however, that courts should apply an “invited error” analysis in determining the consequences of prosecutorial violations of these standards. Under this analysis, courts not only should determine the possible effect of the misconduct “on the jury’s ability to judge the evidence fairly,” but also should consider (1) “[d]efense counsel’s conduct,” and (2) whether the prosecutor “responded reasonably” under the circumstances. Ante, at 12. The conclusion is that prosecu-torial misconduct, if “invited” by defense misconduct, will be excused if it “did no more than respond substantially in order to ‘right the scale.’” Ante, at 12-13. See also ante, at 14.

I believe the Court’s “invited error” analysis is critically flawed: it overlooks the ethical responsibilities of federal prosecutors and threatens to undercut the prohibition of prosecutorial misconduct in the first place. In addition, the Court’s analysis is misapplied to the facts of this case.

To begin with, while the Court correctly observes that both sides are subject to ethical rules of rhetorical conduct, it fails completely to acknowledge that we have long emphasized that a representative of the United States Government is held to a higher standard of behavior:

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . .
“. . . Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U. S. 78, 88 (1935).

*26Accord, Viereck v. United States, 318 U. S. 236, 248 (1943). Cf. ABA Model Rules of Professional Conduct, Rule 3.8 comment (1984) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate”); ABA Model Code of Professional Responsibility EC 7-13 (1980) (prosecutor owes a “special duty”); ABA Standard for Criminal Justice 3-5.8, p. 3-88 (2d ed. 1980). I believe the Court trivializes these high standards by suggesting that a violation may be overlooked merely because the prosecutor decided sua sponte that he had to “right the scale.”4

Moreover, the Court’s suggestion that lower courts should evaluate prosecutorial misconduct to determine whether it was “reasonable]” and “necessary to ‘right the scale,’” ante, at 12, 14, is palpably inconsistent with the Court’s conclusion that such misconduct “constitute^] error.” Ante, at 14; see also ante, at 11, 14, 16-20. As the Court observes, prosecu-torial rhetoric of the sort in this case has “no place in the administration of justice and should neither be permitted nor rewarded.” Ante, at 9. Such errors in appropriate cases might be determined to be harmless, but it is a contradiction in terms to suggest they might be “reasonable]” or “necessary to ‘right the scale.’” Ante, at 12, 14.

There was certainly nothing “reasonable]” in this case about the prosecutor’s responses to the concededly improper defense arguments. The defense counsel’s most serious assertion was that the prosecutor did not believe Young had *27intended to defraud Apeo.5 The prosecutor’s initial statement that he personally believed that Young had indeed intended to defraud Apeo, while itself error, see ante, at 16-18, might be characterized as falling within the bounds of restrained reply.6 But the prosecutor was not content to leave matters there. First, he repeatedly emphasized his personal opinion that Young was guilty of fraud.7 Second, he made predictions about the continuing effects of Young’s conduct based on his prosecutorial “experience in these matters.”8 Third, he warned the jurors that they would not be “doing your job as jurors” if they failed to convict Young.9

*28These arguments, which separately and cumulatively so clearly violated the disciplinary rules of our profession,10 deserve stern and unqualified judicial condemnation. Yet the Court reserves the force of its ire for criticism of the defense counsel’s behavior: the Court castigates the defense counsel’s “attacks,” “opening salvo,” “going ‘out of bounds,”’ “misconduct,” “obviously vulnerable” position, “obvious misconduct,” “accusation[s],” “acerbic charge[s],” “breach of ethical standards,” “improper assertion[s],” “repeated attacks,” and “broadside attack[s].” Ante, at 12, 13, 14, 17, 18. In comparison, the Court appears only reluctantly to concede that “we agree that the prosecutor’s response constituted error” because his remarks were “inappropriate,” “should not have been made,” and were “not necessary.” Ante, at 14, 16, 17. This disparity of tone illustrates one of the major abuses of the “invited error” doctrine, an abuse often noted by the commentators.11 Rather than apply the doctrine as a *29limited corrective, courts frequently employ it as a rule of unclean hands that altogether prevents a defendant from successfully challenging prosecutorial improprieties. Such use of the doctrine results, as it has today, in minimizing the gravity of virtually unchecked prosecutorial appeals going far beyond a “fair” response to the defense counsel’s arguments.12

In further support of its analysis, the Court contends that while the underlying “concerns” of the legal and ethical strictures against improper prosecutorial arguments “are implicated here,” they are not implicated in a serious way. Ante, at 18. The Court maintains, for example, that the prosecutor’s arguments “contained no suggestion that he was relying on information outside the evidence presented at trial.” Ante, at 19. I doubt very much, however, that the prosecutor ever testified or presented evidence about “my experience in these matters.” App. 10. Moreover, the proscription against prosecutorial assertions of personal belief is obviously not concerned solely with references to nonrecord evidence. As the Court itself recognizes, “the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” Ante, at 18. Thus “improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U. S., at 88.13 The *30Court today acknowledges these risks, but then decrees that the prosecutor’s assertions in this case cannot be construed as having “exploited the Government’s prestige in the eyes of the jury.” Ante, at 19. This cavalier assertion is wholly at odds with a longstanding presumption to the contrary, see Berger v. United States, supra, and the Court should at least provide a more reasoned basis for this striking departure.

Similarly, the prosecutor’s admonition that the jurors would not be “doing your job as jurors” if they voted to acquit was neither invited nor excusable, as the Court concedes. Ante, at 18. Many courts historically have viewed such warnings about not “doing your job” as among the most egregious forms of prosecutorial misconduct. See, e. g., Annot., 85 A. L. R. 2d 1132 (1962 and Supp. 1979). How possibly, then, can the Court characterize remarks such as these as a “defense” by the prosecutor “of his decision and his integrity in bringing criminal charges”? Ante, at 19.

► — < ¡ — I

Although Young’s counsel did not object to the prosecutor’s arguments, those arguments nevertheless constitute plain error that require reversal of Young’s conviction if they may be said either (1) to have created an unacceptable danger of prejudicial influence on the jury’s verdict, or (2) to have “seriously affect[ed] the . . . integrity or public reputation of [the] judicial proceedings.” United States v. Atkinson, 297 U. S., at 160. The Tenth Circuit did not address the application of these standards to the facts of this case, see n. 1, supra, reversing instead simply on its conclusory finding that the prosecutor committed “plain error.”

When we detect legal error in a lower court’s application of the plain-error or harmless-error rules, as here, the proper *31course is to set forth the appropriate standards and then remand for further proceedings. We have followed this procedure in countless cases.14 But the Court today reaches out without explanation and inappropriately decides the issue itself. Its analysis is flawed in several respects, and these flaws demonstrate the wisdom of leaving such inquiries in the first instance to the lower courts.

First, the Court’s conclusion that the prosecutor’s arguments could not have prejudiced Young rests in large part on its “invited error” analysis. The gravamen of its reasoning apparently is that, since the defense misconduct supposedly canceled out much of the prosecutor’s excesses, the prosecutor’s remarks were tied to the record evidence, and the jurors “surely understood” the prosecutor’s rhetoric “for what it was,” the prosecutor’s unethical behavior could not likely have had a prejudicial impact on the jurors’ deliberations. Ante, at 19. I have already demonstrated the fallacy of these underlying premises.

Second, the plain-error inquiry necessarily requires a careful review of the entire record to determine the question of possible prejudice. The Court in two brief paragraphs summarizes its review of the record and proclaims that the evidence of Young’s guilt was “overwhelming” and supported the conviction “beyond any doubt whatever.” Ante, at 19, 20. The Court invokes a curious analysis in support of this pronouncement: the fact that the jury acquitted Young on

*32“the most serious charge he faced . . . reinforces our conclusion that the prosecutor’s remarks did not undermine the jury’s ability to view the evidence independently and fairly.” Ante, at 18, n. 15. If the evidence against Young was so “overwhelming,” it is difficult to perceive why the jury would have returned a partial acquittal. The jury’s decision can just as naturally be interpreted to suggest that the evidence was close and the verdict a compromise, thus supporting a belief that the prosecutor’s assertion of personal knowledge and his exhortation to “do your job” did in fact have a prejudicial impact. Moreover, the Court minimizes the fact that mail fraud and the making of false statements are specific-intent crimes and that good faith therefore stands as a complete defense. See, e. g., United States v. Martin-Trigona, 684 F. 2d 485, 492 (CA7 1982) (mail fraud); United States v. Lange, 528 F. 2d 1280, 1287-1288 (CA5 1976) (false statements). The question of Young’s specific intent to defraud necessarily turned on witness credibility, and in this context the prosecutor’s misconduct may well have had a prejudicial impact on the jurors’ deliberations. Although the Court is surely correct in emphasizing the impropriety of the crude oil condensate blending scheme that Young participated in, there was significant evidence that, if believed, might well have suggested Young’s innocent though ignorant motives.15

*33Third, the Court altogether fails to consider whether the prosecutor’s gross misconduct and flouting of the professional canons “seriously affect[ed] the . . . integrity or public reputation of [the] judicial proceedings.” United States v. Atkinson, 297 U. S., at 160; see also United States v. Frady, 456 U. S., at 162, n. 11; Brasfield v. United States, 272 U. S. 448, 450 (1926). From the citations in the Tenth Circuit’s opinion, see 736 F. 2d, at 570, it would appear that prosecu-torial improprieties of the sort committed in this case may present a recurring problem. This Court is in no position at this time to pass judgment on the gravity of the problem and the panel’s apparent concern that the prosecutor’s misconduct in this case compromised the integrity and public reputation of the Circuit’s administration of justice. Clearly a remand to address the question is necessary.16

These deficiencies in the Court’s plain-error analysis reinforce the conviction that it was poor judicial administration *34for the Court to embark on its inquiry in the first place. Our traditional practice has been to leave fact-bound questions of possible prejudicial error to the lower courts on remand. See swpra, at 30-31, and n. 14. Two important considerations undergird this practice. First, the function of this Court is not primarily to correct factual errors in lower court decisions, but instead to resolve important questions of federal law and to exercise supervisory power over lower federal courts. Our institutional role properly is focused on ensuring clarity and uniformity of legal doctrine, and not on the case-specific process of reviewing the application of law to the particularized facts of individual disputes — one of the functions performed quite capably by the federal courts of appeals. This allocation of responsibilities can result in subtle but vitally important differences in institutional outlook, differences that should not be shortcut simply because a majority decides the evidence of a particular defendant’s guilt is “overwhelming” and “established beyond any doubt whatever.” Ante, at 19, 20.

Second, if the Court is to be evenhanded in its willingness to review lower courts’ plain-error and harmless-error determinations, we will be required to undertake such analyses with ever-increasing frequency. Yet this Court simply is not institutionally capable of conducting the sort of detailed record analyses required in properly administering the plain-error and harmless-error doctrines.

“This Court is far too busy to be spending countless hours reviewing trial transcripts in an effort to determine the likelihood that an error may have affected a jury’s deliberations. ... As a practical matter, it is impossible for any Member of this Court to make the kind of conscientious and detailed examination of the record that should precede a determination that there can be no reasonable doubt that the jury’s deliberations as to [the] defendant were not affected by the alleged error. And it is an insult to the Court of Appeals to imply, as the *35Court does today, that it cannot be trusted with a task that would normally be conducted on remand.” United States v. Hasting, 461 U. S. 499, 516-517 (1983) (Stevens, J., concurring in judgment).

Surely the Court’s time could have been better spent than on familiarizing ourselves in this case with the details of crude-oil refining and blending processes; the relative gravities and qualities of sweet crude, crude-oil condensate, and Number 4 fuel oil; long-rescinded Government regulations; various oil-industry testing procedures; and the complex of companies and individuals with whom Billy G. Young interacted— matters that are all important to a fair evaluation of Young’s defense, but that necessarily are limited to the facts of this isolated case.

The Tenth Circuit’s statement that the prosecutor’s remarks were “sufficiently egregious as to constitute plain error” could be read as concluding that the evidence of Young’s guilt was not overwhelming. 736 F. 2d, at 570. Similarly, the Tenth Circuit’s pointed discussion about the frequency with which “[t]he issue has come before this Court ... in recent years” could be construed as suggesting that the Government’s recurrent violations have seriously threatened the integrity of courtroom proceedings in that Circuit. Ibid. Although these are possible readings of the opinion below, the societal costs of reversing a conviction and requiring a retrial justify the requirement that an appellate court discuss the basis of its reasoning that prosecutorial misconduct is sufficiently egregious as to constitute plain error. Cf. United States v. Hasting, 461 U. S. 499, 528 (1983) (Brennan, J., concurring in part and dissenting in part) (courts should exercise supervisory powers to reverse convictions “only after careful consideration, and balancing, of all the relevant interests”). This Court’s primary function is to ensure that such considered evaluation has been conducted by the court below. See infra, at 30-31, 33-35.

In its 39-page brief, the Government devotes just one footnote in its effort to demonstrate the unreasonableness of requiring prosecutors to object to defense misconduct rather than according them a “right” of reply. See Brief for United States 23, n. 18: “We do not believe that the alternative proposed by the court of appeals (Pet. App. 11a) — objecting to ah improper defense argument and requesting an instruction to the jury to disregard that argument — is sufficient to dispel the unfairness engendered by an argument like respondent’s here. Such an instruction would not answer the factual assertion of prosecutorial hypocrisy that was made here.” As the Court notes today, however, an objection followed by admonition or instruction is typically presumed to be sufficient to dispel prejudice. Ante, at 13. This presumption surely applies to the United States Government as well as to the accused.

We háve long recognized that the courts of appeals may prescribe rules of conduct and procedure to be followed by district courts within their respective jurisdictions. In Cupp v. Naughten, 414 U. S. 141, 146 (1973), for example, the Court observed that within the federal system an “appellate court will, of course, require the trial court to conform to constitutional mandates, but it may likewise require it to follow procedures deemed desirable from the viewpoint of sound judicial practice although in nowise commanded by statute or by the Constitution.” And in Donnelly v. DeChristoforo, 416 U. S. 637, 648, n. 23 (1974), the Court emphasized that “appellate courts, by proper exercise of their supervisory authority,” should “discourage” prosecutorial misconduct. See also Bartone v. United States, 375 U. S. 52, 54 (1963) (per curiam) (courts of appeals have “broad powers of supervision” over federal proceedings); Mesarosh v. United States, 352 U. S. 1, 14 (1956); McNabb v. United States, 318 U. S. 332, 340 (1943) (“Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence”).

Excusing a federal prosecutor’s courtroom misconduct merely on the ground that the prosecutor was responding to his adversary suggests, it seems to me, that a trial is something like a schoolyard brawl between two children. Such an excuse smacks of the “sporting theory of justice, ” a theory long recognized as “only a survival of the days when a lawsuit was a fight between two clans.” Pound, The Causes of Popular Dissatisfaction with the Administration, of Justice, 29 A. B. A. Rep. 395, 404-406 (1906). If unethical arguments by the prosecutor in response to defense remarks constitute error, as the Court concedes, it is unclear why the error should be excused because the prosecutor wanted to “right the scale.”

“The indictment says that Billy Young is charged with intending to devise a scheme to defraud Apeo and to obtain money and property by false and fraudulent pretenses. And I submit to you that there’s not a person in this courtroom including those sitting at this table who think that Billy Young intended to defraud Apeo.” App. 5. The defense counsel also argued that the Government had tried the case “unfairly,” and that Young was “the only one in this whole affair that has acted with honor and with integrity.” Id., at 4-7.

“I think he said that not anyone sitting at this table thinks that Mr. Young intended to defraud Apeo. Well, I was sitting there and I think he was.” Id., at 8.

“I think he got 85 cents a barrel for every one of those 117,250.91 barrels he hauled and every bit of the money they made on that he got one percent of. So, I think he did. If we are allowed to give our personal impressions since it was asked of me. ... I don’t know what you call that, I call it fraud. You can look at the evidence and you can remember the testimony, you remember what they said and what he admitted they said. I think it’s a fraud. . . . That’s the whole point of the prosecution, it was a fraud.” Id., at 8-9.

“He said — Mr. Bailey said Apeo didn’t lose, says doesn’t think anyone will come back. Well, what he thinks they won’t come back but my experience in these matters is when the government does something like this they’re going to come back. All that money that Apeo got for this stripper and new oil, A1 Green at the Apeo trust he’s going to get some kind of invoices. That’s what I think.” Id., at 10.

“I don’t know whether you call it honor and integrity, I don’t call it that, Mr. Bailey does. If you feel you should acquit him for that it’s your pleasure. I don’t think you’re doing your job as jurors in finding facts as *28opposed to the law that this Judge is going to instruct you, you think that’s honor and integrity then stand up here in Oklahoma courtroom and say that’s honor and integrity; I don’t believe it.” Id., at 10-11.

See, e. g., ABA Model Code of Professional Responsibility DR 7-106(C) (1980), stating in relevant part:

“In appearing in his professional capacity before a tribunal, a lawyer shall not:
“(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
“(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to matters stated herein.”

See also ABA Model Rules of Professional Conduct, Rule 3.4(e) (1984) (incorporating standards set forth above); ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980) (“It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant”).

See, e. g., J. Stein, Closing Argument — The Art and the Law §88 (1982); Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, *2950 Texas L. Rev. 629, 657-658 (1972); Crump, The Function and Limits of Prosecution Jury Argument, 28 Sw. L. Rev. 505, 531-533 (1974).

Under this sort of application of the invited-response rule, “[t]he prosecutor may deduce. . . that he would do well to watch carefully for certain mistakes that the defense counsel may make, and, instead of objecting if that course is open to him, attempt to take advantage of that mistake . . . .” Comment, Limitations Upon the Prosecutor’s Summation to the Jury, 42 J. Crim. L., C. & P. S. 73, 81 (1951).

See also United States v. Bess, 593 F. 2d 749, 755 (CA6 1979) (“Implicit in [a prosecutor’s] assertion of personal belief that a defendant is *30guilty, is an implied statement that the prosecutor, by virtue of his experience, knowledge and intellect, has concluded that the jury must convict. The devastating impact of such ‘testimony’ should be apparent”).

See, e. g., Kentucky v. Whorton, 441 U. S. 786, 789-790 (1979) (per curiam); Moore v. Illinois, 434 U. S. 220, 232 (1977); Moore v. United States, 429 U. S. 20, 23 (1976) (per curiam); Coleman v. Alabama, 399 U. S. 1, 11 (1970); Foster v. California, 394 U. S. 440, 444 (1969); Gilbert v. California, 388 U. S. 263, 274 (1967); United States v. Wade, 388 U. S. 218, 242 (1967); Ferguson v. United States, 375 U. S. 962 (1964) (order). See also Connecticut v. Johnson, 460 U. S. 73,102 (1983) (Powell, J., dissenting) (question of an error’s possible prejudice is “[njormally... a question more appropriately left to the courts below,” in part because “[t]here may be facts and circumstances not apparent from the record before us”).

Young’s defense was that he believed that the blending of crude oil condensate with Number 4 fuel oil, an “unfinished” oil under Government regulations, would yield a blend that could still properly be certified as “crude” under then-extant regulations. Young maintained that Kenneth Ross, then an officer at Prime Resources Corporation, had convinced him that such certification was permissible. Tr. 78, 514. Ross denied that he had so persuaded Young, and the dispute turned on the jurors’ credibility determinations. There was substantial testimony from Government witnesses that the blending of crude oil condensate with other oil was a common industry practice, albeit not the blending of condensate with fuel oil. Id., at 55, 59, 69, 361, 392. There was also testimony that the highest-quality crude condensate, when mixed with Number 4 fuel oil, yielded a blend superior to some lower-quality crudes. Id., at 55-56, 384, 427. Moreover, Apeo received this blend for seven months, tested it, and *33reported no untoward results; it was only when another company attempted to pass off unadulterated low-quality fuel oil that Apeo became concerned. Id., at 364-366, 412. Young, who had an eighth-grade education, maintained that he had thought Government regulations permitted his manner of certification; Government witnesses agreed that it was difficult to “make a lick of sense” out of the complex standards. Id., at 367. Finally, Government witnesses themselves testified that they did not believe that Young had intended to defraud Apeo, that many others had been aware of the scheme, and that others had taken advantage of Young. Id., at 57-58, 78-80.

The Court suggests that plain error may be found only where the error “had an unfair prejudicial impact on the jury’s deliberations.” Ante, at 17, n. 14. Plain error also may be grounded, however, on those errors that “seriously affect the . . . integrity or public reputation of [the] judicial proceedings.” United States v. Atkinson, 297 U. S. 157, 160 (1936). I believe that certain extreme circumstances, such as egregious misbehavior or a pattern and practice of intentional prosecutorial misconduct that has not been deterred through other remedies, may well so seriously undermine the integrity of judicial proceedings as to support reversal under the plain-error doctrine. Cf. United States v. Hasting, 461 U. S., at 527 (Brennan, J., concurring in part and dissenting in part) (supervisory powers).