specially concurs.
I specially concur in the result. While in prior decisions we have applied the invited error rule to preclude our consideration of alleged errors that were caused by defense counsel in the course of a criminal prosecution,1 I would not apply the rule in such a manner as to preclude meaningful appellate review of invited errors that raise a substantial question as to the underlying fairness and integrity of the factfinding process. In contrast to the majority, I would evaluate such invited errors under the plain error standard of review adopted by this court in Wilson v. People, 743 P.2d 415, 420 (Colo.1987) — that is, whether the alleged error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Because I am satisfied that the error in this case did not meet that rigid standard of review, I would affirm the judgment.
I.
The instruction tendered by defense counsel in this case stated as follows: that it was “the accused’s theory of the case that he had not been correctly identified as a perpetrator of the offense as charged;” that if “you find from all the evidence that the accused has been incorrectly identified, then you should find the accused not guilty;” and that if “you find from all the *1311evidence that the accused was correctly identified and the prosecution has proven beyond a reasonable doubt all other elements of the offense charged, you should find the accused guilty.” In his appeal to the court of appeals, the defendant contended that the instruction erroneously informed the jury that the critical element of identity need not be proven beyond a reasonable doubt. The court of appeals initially held that the invited error rule did not preclude appellate review of the defendant’s claim, reasoning as follows:
The invited error doctrine has been stated as a rule of strict preclusion of review. However, the right to trial by jury is a fundamental constitutional right guaranteed in a criminal prosecution. The ultimate duty to instruct properly lies with the trial court under People v. Mackey, [185 Colo. 24, 521 P.2d 910 (1974) ]. Thus it is illogical to apply the invited error doctrine in a manner which strictly prohibits review of fundamentally erroneous instructions which result in manifest prejudice or unfairness.
People v. Zapata, 759 P.2d 754, 756 (Colo. App.1988). The court then addressed the merits of the defendant’s claim and concluded that the challenged instruction, when read in conjunction with the other instructions, did not constitute plain error and, hence, was “insufficient to mandate reversal.” Id. I agree with the court of appeals’ analysis and resolution of this case.
II.
I acknowledge that there probably is a difference in kind, and not merely in degree, between defense counsel’s failure to object to a constitutionally erroneous instruction on the burden of proof — an error clearly reviewable under a plain error standard pursuant to Crim.P. 52(b) — and defense counsel’s tendering of a similarly unconstitutionally infirm instruction which is submitted to the jury in spite of its constitutional infirmity. In my view, however, this difference is not so substantial as to permit an appellate court to correct the error in the former case and to preclude it from addressing the error in the latter situation. If the claimed error is truly “plain,” in that it so undermines the fundamental fairness of the trial as to cast serious doubt on the reliability of the result, it would seem to me that an appellate court, rather than refusing to address the issue by a wooden application of the invited error rule, should come to grips with the defendant’s claim in order to prevent a possible miscarriage of justice.
To be sure, the invited error in most cases will result from the inadvertence or negligence of defense counsel, but it is the defendant, and not defense counsel, who will bear the stigma of a criminal conviction and, in many cases, the burden of a prison sentence. Permitting an appellate court to consider an invited error under a plain error standard of review does no more than provide an appellate court with the necessary means to reverse a criminal conviction obtained in derogation of fundamental fairness and when there is serious doubt concerning the reliability of the fact-finding process.2
The court of appeals followed the salutary course of addressing the merits of the defendant’s claim notwithstanding the fact that the alleged error was invited by defense counsel. I am convinced that the invited error in this case was not such as to undermine the fundamental fairness of the trial itself and to cast serious doubt on the reliability of the factfinding process. Because the invited error in this case did not *1312rise to the level of plain error, I concur in this court’s affirmance of the judgment of conviction.
. See, e.g., People v. Collins, 730 P.2d 293 (Colo.1986) (invited error rule precludes consideration of jury instruction, tendered by defense counsel and given by court, which limits heat of passion defense to second degree assault and does not extend to first degree assault); People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973) (where defense counsel on cross-examination asked open-ended question that elicited the very information which defense counsel had requested the court to caution witnesses against offering in their testimony, invited error rule precluded consideration of whether defendant was prejudiced by such testimony); Stilley v. People, 160 Colo. 329, 417 P.2d 494 (1966) (where defendant successfully moved for elimination of death penalty from case, invited error rule applied to preclude consideration of defendant’s claim that trial court erred in not submitting the issue of penalty to the jury); Gray v. People, 139 Colo. 583, 342 P.2d 627 (1959) (invited error rule applicable to preclude consideration of defendant’s challenged jury instruction on similar offense evidence, which instruction was given at defense counsel’s request).
. I recognize that the application of the invited error doctrine on a direct appeal will not preclude a defendant from filing a petition for postconviction relief under Crim.P. 35(c) after the appellate process has run its course. Even if the defendant is successful in convincing the postconviction court that he was denied his constitutional right to effective assistance of counsel or that his constitutional rights were otherwise violated in the original trial, any relief will not likely occur until the defendant has already served a substantial portion of a sentence that arguably should never have been imposed in the first instance. An appellate court’s willingness to address and resolve the invited error on direct appeal under the plain error standard of review will obviate any additional injustice resulting from the defendant’s service of additional time on a conviction determined to be invalid.