Managing Transitional Moments in Criminal Cases

73 Pages Posted: 8 Sep 2005

See all articles by Toby J. Heytens

Toby J. Heytens

University of Virginia School of Law


As long as some courts review the work of others, there will be situations where governing precedent shifts during the interim. Although such transitional moments follow many appellate court decisions, several of the Supreme Court's recent criminal procedure rulings would have been especially disruptive if implemented in a maximally retrospective fashion. Focusing on direct review of federal convictions, this Article identifies and critiques one widely used method for limiting the effects of legal change: subjecting defendants who failed to anticipate new rulings to a narrow form of review that virtually guarantees they will lose. The problem with applying plain-error rules in this way is that it cannot be justified by the only purposes warranting use of forfeiture rules in the direct review context. Given the unsuitability of the forfeiture approach as a means of coping with transitional moments, the Article suggests reconsideration of the Warren Court's preferred method: non-retroactivity doctrines.

Keywords: Plain-error review, criminal procedure, federal courts, retroactivity, forfeiture

Suggested Citation

Heytens, Toby J., Managing Transitional Moments in Criminal Cases. Yale Law Journal, Vol. 115, p. 922, 2006. Available at SSRN:

Toby J. Heytens (Contact Author)

University of Virginia School of Law ( email )

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Charlottesville, VA 22903
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