When you read about someone breaking into an unlocked door in rural North Carolina you may hear sighs about the death of the good old days.  But leave the front door wide open all night and even the sweetest southern grandma will shake her head in disbelief.  That’s the picture that comes to my mind when discussing the difference between failure to preserve and invited error. 

In criminal cases, the appellate courts will review a limited number of issues for plain error even when no objection was made below.  For example, jury instruction challenges are subject to plain-error review.

But imagine these two scenarios.  In scenario one, appellant’s tired and battle-worn trial counsel doesn’t notice a big mistake in a jury instruction proposed by another party.  In scenario two, the appellant’s equally tired and battle-worn counsel hands the trial judge a proposed instruction with the same big mistake in it.  Does the second scenario make you a bit more uneasy about plain-error review?  If so, your view aligns with the law.  In North Carolina (and beyond), plain-error review is unavailable when a party requests or encourages a trial judge to make a mistake (a.k.a., invited error).

Both invited error and failing to object are error preservation failings.  And assessing where along a continuum some error preservation problems land is sometimes difficult.  For example, what if defense counsel tells the trial judge the first part of a pattern jury instruction is fine, but says nothing about a potential limiting instruction found on the next page of the pattern instruction?

In State v. Plotz, No. COA 23-749 (N.C. Ct. App. Aug. 20, 2024), the Court of Appeals explained how to distinguish between invited error and failure to object when jury instructions are at issue: 

“In cases where the defendant participates in crafting the instructions and specifically consents to the instruction as given, he may not argue on appeal that the language or form of the instruction that was given was in error.  When a provision is excluded from the instruction and that provision was specifically discussed with the defendant who explicitly consented to its exclusion, likewise no appeal will be heard.  However, when a provision is excluded from the instruction and the appealing party did not affirmatively consent to its exclusion but only consented to the instructions as given, even when given “ample opportunity to object,” we cannot say that he invited the alleged error.

Slip. op. at 16 (internal citations omitted).

In other words, when a party invites a trial judge to walk through the wrong door, the door to the appeal will be slammed in the party’s face.

In civil cases, distinguishing between failing to object and inviting error usually arises when a party asks for review of an unpreserved issue under Appellate Rule 2.   An appellate court’s already heightened reluctance to invoke Appellate Rule 2 is magnified when a party has invited error. 

Can you think of other scenarios where the difference between invited error and failure to object can be difficult to distinguish?  What standards or tricks do you use to distinguish between invited error and failure to object? 

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