744
Stevens, J., dissenting
as a whole. In that sense, they may be said to "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U. S. 157, 160 (1936), making them candidates for reversal under Rule 52. See United States v. Young, 470 U. S. 1, 15 (1985) (citing Atkinson, supra).
The phrase "substantial rights" appears twice in Rule 52: once in Rule 52(a), which describes the harmless-error rule, and again in Rule 52(b), in connection with the plain-error rule. See ante, at 731. Presumably, the words have the same meaning each time they are used. If the majority's understanding of "substantial rights" is correct, then even an objection by respondents to the alternates' presence during jury deliberations would not have mandated reversal here; instead, the Rule 24(c) violation would have been subject to harmless-error review, as it did not "affect substantial rights" within the meaning of Rule 52(a). I cannot concur in reasoning that would lead to this result. Had respondents objected, and had the trial court nonetheless refused to follow the plain dictates of Rule 24(c), deliberately rejecting the considered judgment of the Rule's drafters, I think it clear that reversal would have been the proper response, with or without a showing of prejudice.
Reading "substantial rights" the same way in Rule 52(b) as in Rule 52(a) does not, of course, eliminate the difference between cases in which no objection is made and those in which one is. A nonforfeited error affecting substantial rights must be corrected under Rule 52(a). A forfeited error, however, even if it is plain and affects substantial rights, "may" be corrected at the discretion of the reviewing court under Rule 52(b). See Fed. Rule Crim. Proc. 52(b); ante, at 735-737. It is this distinction between automatic and discretionary reversal that gives practical effect to the difference between harmless-error and plain-error review, and also every incentive to the defendant to raise objections at the trial level.
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