The Plain Error Review Act

Correcting Clear Errors Directly — As the Federal System Has Since 1946

NOTE: This is model legislation prepared for legislative sponsors. When filed, the Georgia Office of Legislative Counsel will assign an LC number, confirm Code section placement, and format the bill according to their internal conventions. New statutory text appears in bold. Legislative findings (Section 2) will appear in the session law but are not codified in the O.C.G.A.

STRATEGIC NOTE: At the July 10, 2026 hearing of the House Blue-Ribbon Study Committee on Criminal Post-Conviction Litigation, the question of extending plain error review to all claims in criminal cases — as the federal system allows — was raised from the committee table, and Chief Justice Peterson responded that the current waiver rules have “never made a whole lot of sense” to him and that he “certainly would not oppose the extension of plain error to other things.” He added that while such an extension “carries with it a range of other issues,” it is “certainly something worth considering.” This short, single-subject, zero-appropriation bill supplies that extension. It complements — and does not depend on — the other bills in this package: plain error review resolves record-based unpreserved errors on direct review; the habeas reforms address off-record claims that no appellate record can resolve.

[Session Year] LC [Assigned by Legislative Counsel]

House Bill ___
By: Representatives [Sponsors to be identified]

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 6 of Title 5 of the Official Code of Georgia Annotated, relating to certiorari and appeals to appellate courts generally, so as to provide for review of plain errors in criminal cases notwithstanding the failure to raise such errors in the trial court; to provide for the standard of review; to provide for construction; to provide for applicability; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1. SHORT TITLE

This Act shall be known and may be cited as the “Plain Error Review Act.”

SECTION 2. LEGISLATIVE FINDINGS AND DETERMINATIONS

The General Assembly finds and determines that:

(1) Under current Georgia law, an error committed in a criminal trial that defense counsel did not raise by timely objection is, with narrow exceptions, deemed waived and cannot be reviewed on appeal. Plain error review is available only for a judge’s expression of opinion as to matters proved or the guilt of the accused under Code Section 17-8-57, for erroneous jury instructions under Code Section 17-8-58, for evidentiary rulings under Code Section 24-1-103, and for a small set of additional categories recognized by decisional law.

(2) Because unpreserved errors are otherwise unreviewable, the only avenue to correct them is a claim that counsel was constitutionally ineffective for failing to object — a claim that requires the appointment of new conflict-free counsel, an evidentiary hearing on a motion for new trial, and testimony from trial counsel. In Sanders v. State, No. S26A0222 (2026), Chief Justice Nels Peterson identified this machinery as a principal cause of the delay and expense that characterize Georgia’s post-conviction system.

(3) The federal courts have reviewed unpreserved plain errors in criminal cases under Rule 52(b) of the Federal Rules of Criminal Procedure since 1946, under the four-part standard stated in United States v. Olano, 507 U.S. 725 (1993). Georgia’s appellate courts already apply the equivalent standard, adopted in State v. Kelly, 290 Ga. 29 (2011), to the limited categories in which plain error review is now authorized.

(4) Extending plain error review to all claims of error in criminal cases permits appellate courts to correct clear, outcome-determinative errors directly on the existing record — without an evidentiary hearing, without the appointment of additional counsel, and without collateral litigation about the performance of trial counsel — while the demanding four-part standard preserves the incentive to make timely objections and confines correction to errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings. This Act requires no appropriation.

SECTION 3.

Chapter 6 of Title 5 of the Official Code of Georgia Annotated, relating to certiorari and appeals to appellate courts generally, is amended by adding a new Code section to read as follows:

“5-6-52. Plain error review in criminal cases.

(a) In any motion for new trial, direct appeal, or other direct review of a judgment of conviction in a criminal case, the reviewing court may consider and correct a plain error affecting substantial rights notwithstanding that the error was not brought to the attention of the trial court.

(b) An error is subject to correction under this Code section when:

(1) The error was not affirmatively waived by the defendant;

(2) The error was clear and obvious beyond reasonable dispute;

(3) The error affected the substantial rights of the defendant, which in the ordinary case means that the error likely affected the outcome of the proceedings; and

(4) The error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

(c) This Code section shall apply to all claims of error in criminal cases, including, but not limited to, claims arising from pretrial rulings, the conduct of trial, argument of counsel, sentencing, and the acceptance of pleas.

(d) Nothing in this Code section shall:

(1) Limit any broader standard of review or remedy provided by Code Section 17-8-57, Code Section 17-8-58, Code Section 24-1-103, or any other provision of law; or

(2) Create any claim cognizable in habeas corpus that does not otherwise exist.”

SECTION 4. APPLICABILITY; EFFECTIVE DATE

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, and shall apply to any criminal case in which the judgment of conviction has not become final by the conclusion of direct review as of such date.

SECTION 5. REPEAL

All laws and parts of laws in conflict with this Act are repealed.

THE PLAIN ERROR REVIEW ACT — SUMMARY

What It Does	Statute Affected
Extends plain error review to all claims of error in criminal cases on direct review	§ 5-6-52 (new)
Codifies Georgia’s existing four-part State v. Kelly standard	—
Preserves broader review under the judicial-comment, jury-charge, and evidence statutes	§§ 17-8-57, 17-8-58, 24-1-103 (unchanged)

Appropriations required: None. New institutions created: None. Effective date: Immediate upon Governor’s approval, applying to cases still on direct review.

← All Model Legislation • The Conviction Integrity Act →