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Criminal Nuggets

Dec 16, 2014


The Illinois Supreme Court once and for all explains how to properly preserve an issue for criminal appeal. Criminal trial attorneys must keep in mind that the civil rules are different and that some trial error is unforeseeable. 

Important points pertaining to the proper way to preserve and issue for appeal in criminal cases have been raised and highlighted by the Illinois Supreme Court in People v. Denson, 2014 IL 116231 (11/20/2014).

The Confusion

Criminal trial attorneys have been reading different cases and rules about the proper way to preserve an issue for appeal. The procedures have not always been the same.

The Illinois Supreme Court has finally cleared up some of the confusion out there on this issue. The Court pointed out that we have to remember that -

  • Civil Rules Are Different Than Criminal Rules
  • Some Criminal Trial Issues are Unforeseeable 

If we keep these ideas front and center together with the criminal golden rule of perfecting an appeal then everything actually makes sense.

What is the Criminal Golden Rule of Perfecting a Criminal Appeal?

You always have to file a post trial motion. 

All these points were recently discussed in Denson.

The Issue

The issue there was weather or not the defendant forfeited an issue for appeal because he did not file his own motion in limine to exclude the evidence nor object contemporaneously to the evidence?

The Clear Rule: How to Properly Preserve An Issue For Criminal Appeal

The Illinois Supreme Court declared that a defendant preserves an issue for criminal appeal by

(1) Raising it in either a motion in limine or a contemporaneous trial objection,
(2) Including it in the post trial motion.

See People v. Cox, 195 Ill. 2d 378, 382 (2001); People v. Hudson, 157 Ill. 2d 401, 434-35 (1993); People v. Boclair, 129 Ill. 2d 458, 476 (1989).

Forfeiture rules exist to encourage defendants to raise issues in the trial court before an appeal. This ensures that the trial court has an opportunity to correct any errors prior to appeal and that the defendant does not obtain a reversal through his or her own inaction. See, e.g., People v. Herron, 215 Ill. 2d 167, 175 (2005); People v. Reid, 136 Ill. 2d 27, 38 (1990).

Also, the system doesn't want a Defendant to invent appeal issues that were not real issues at the trial level.


Here, the state filed the motion in limine to admit conspirator statements.

This was a 6 page motion by the state followed by a 5 page written motion in response by the defense.

The court then had a formal hearing on the admissibility of the conspirator's statements. In this hearing, the defense argued against admissibility.

In his motion for a new trial, defense counsel argued that the trial court erred in admitting the statements.


The Court said that we can't get formalist about this. What matters is that the trial judge has at least two chances to rule on an issue.

One of those ways has to be in a post trial motion and the other way can be accomplished in one of two manners.

Here, it did not matter that it was the State that “started” the litigation on the issue of the admissibility of the conspirator statement.

Defendant took a position against their admissibility and filed an appropriate post trial motion, thus, defendant preserved that issue for appeal.

“The critical consideration in a case such as this is not which party initiated the in limine litigation, but rather whether the issue being raised was litigated in limine.” ¶ 13

It doesn't matter who raises the issues. The interests served are exactly the same.

Requiring the Defendant to file his own motion would have accomplished absolutely nothing.

The facts, issues, and arguments would have been the same if defense counsel filed his own motion.

“The purpose of CoxHudson, and Boclair is not to ensure that pretrial evidentiary issues are litigated twice. Rather, the point of these cases is to ensure that, whether by contemporaneous trial objection or in limine litigation, the trial court is given a full and fair opportunity to consider and rule upon the issue. That is exactly what happened here, and as defendant also raised the issue in a timely filed post trial motion, nothing more than that was required.” ¶ 13.

Since, the issues were litigated in the motion in limine, defense counsel was not required to make a contemporaneous objection at trial.

“In criminal cases, this court has held consistently that, to preserve an issue for review, a defendant must raise it in either a motion in limine or an objection at trial, and in a post trial motion." Cox, 195 Ill. 2d at 382; Hudson, 157 Ill. 2d at 434-35; Boclair, 129 Ill. 2d at 476.

That is exactly what defendant did here.

The Illinois Supreme Court will not require anything more. 


State tried to make this messy because there are some cases where defendants were required to make a contemporaneous objection at trial in order to preserve their issue.

The Supreme Court did a great job clarify all of this by pointing out that some objections can’t be raised by a  motion in limine because they are unknown or unforeseeable. Obviously, these types of issues have to be objected to contemporaneously because the motion in limine is impossible.

Trial things happen at trial.  Things like:

  • improper opening statements
  • voir dire irregularities
  • jury bias, and a
  • bunch of other things

-only come up in a trial. Thus, defendant must raise the objection contemporaneously in those situation because a motion in limine won’t have converted them.

This, however, does not establish a blanket rule that every criminal issue must be objected to contemporaneously.

Additionally, the Court points out that the State confused the civil rule with the criminal rule.

In civil cases it is the rule that a party is required to raise an issue contemporaneously at trial in order to preserve the issue. That is because in civil cases post trial motions are not necessarily required.

Remember, the general rule is that a party must bring up an issue at least twice at the trial level to ensure that the trial court has been given a chance to review the issue.

In a criminal case that will happen once at the required post trial motion and before that during a motion in limine or a contemporaneous objection.