The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

A Plain Error Analysis
By Honorable Thomas J. Homer

Generally, in order to preserve an error for review, a defendant must make a timely objection at trial, and renew the grounds for the objection in a written post-trial motion. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988); People v. Herrett, 137 Ill. 2d 195, 209, 561 N.E.2d 1, 7 (1990). If the defendant fails to make these objections, then the "waiver rule" generally precludes the defendant from raising the issue as grounds for reversal on appeal. Herrett, 137 Ill. 2d 195 at 209, 561 N.E.2d at 7 (citing People v. Johnson, 119 Ill. 2d 119, 518 N.E.2d 100 (1987); People v. Hall, 114 Ill. 2d 376, 499 N.E.2d 1335 (1986)).

The reason for the waiver rule is that an error should be called to the attention of the trial judge and the adversary before a final judgment. People v. Lann, 261 Ill. App. 3d 456, 633 N.E.2d 938 (1st Dist. 1994). Then, remedial measures can be taken in the trial court, and the number of reversals at the appellate level are reduced.

Sometimes however, an important constitutional issue or a fundamental error may not have been properly preserved for appeal. In these instances, the waiver rule, if it operated to strictly prohibit review, could unjustly deny a party the right to have the error corrected on appeal.

Fortunately, the waiver rule does not strictly prohibit review of all issues. Indeed, the waiver rule is one of administrative convenience, and operates merely as an admonition to the litigants and not as a limitation on the jurisdiction of the reviewing court. American Federation of State, County & Municipal Employees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480, 584 N.E.2d 116, 119 (1991); In re Marriage of Winter, 160 Ill. App. 3d 277, 512 N.E.2d 1371 (1987).

Thus, Supreme Court Rule 615(a) was developed to allow "plain errors or defects" affecting substantial rights to be noticed on appeal, although they were not brought to the attention of the trial court. Herrett, 137 Ill. 2d at 209, 561 N.E.2d at 7. Plain error has been described as "[a]ny error, defect, irregularity, or variance" which affects substantial rights though such was not brought to the attention of the trial court. People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901, 909 (1995); but see People v. Pickett, 54 Ill. 2d 280, 296 N.E.2d 856 (1973)(noting that the rule does not require review of all errors affecting substantial rights). The rule is invoked where necessary to preserve the integrity of the judicial process. Herrett, 137 Ill. 2d at 209, 561 N.E.2d at 8.

There are two alternatives under which an appellate court may invoke the plain error rule and consider an error not properly preserved for appeal. The first alternative applies only in criminal cases, while the second applies in both criminal and civil cases. In the first alternative, an appellate court may review a claimed error when the evidence is closely balanced, and failure to consider the error may allow a conviction of an innocent person to stand. Herrett, 137 Ill. 2d at 209, 561 N.E.2d at 7-8 (citing People v. Carlson, 79 Ill. 2d 564, 404 N.E.2d 233 (1980)). In the second alternative, an appellate court may review a claimed error when the error is so fundamental and of such magnitude that it resulted in a denial of a fair trial. Supreme Court Rule 615(a); see also, Herrett, 137 Ill. 2d at 209, 561 N.E.2d at 8 (citing Carlson, 79 Ill. 2d 564, 404 N.E.2d 233); Reuben H. Donnelley Corp. v. Earles, 268 Ill. App. 3d 263, 643 N.E.2d 1329 (4th Dist. 1994).

Often, courts have invoked the plain error rule under the second alternative because the error was fundamental and of such magnitude that it resulted in the denial of a fair trial. For example, the plain error rule has been applied on such basis when the prosecutor made improper comments regarding the defendant’s failure to testify, People v. Burton, 44 Ill. 2d 53, 254 N.E.2d 527 (1967). Similarly, our supreme court invoked the plain error rule when the jury instructions given by the trial court failed to include an element of the crime, People v. Oqunsola, 87 Ill. 2d 216, 429 N.E.2d 861 (1981). "The interests of justice demand that the rule of waiver be modified in criminal cases, where necessary to ensure the fundamental fairness of the trial." Oqunsola, 87 Ill. 2d at 222, 429 N.E.2d at 864. Therefore, the very existence of fundamental error resulting in the denial of a fair trial is sufficient to both invoke the plain error rule and require a reversal of the judgment of the trial court.

However, in the absence of a finding of fundamental error, courts have differed over when to invoke the plain error rule and grant relief under the closely balanced analysis. In explaining the two plain error alternatives in criminal cases, courts of review have typically stated that "[t]he criterion for the application of the plain error rule *** is whether the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial or sentencing hearing." See e.g., People v. Young, 128 Ill. 2d 1, 47, 538 N.E.2d 461, 471 (1989). As a result, courts in determining whether to "invoke" the plain error rule under the closely balanced test, generally have ignored the second requirement of the closely balanced test, and have invoked the plain error rule without expressly looking to whether failure to consider the error "may allow a conviction of an innocent person to stand." See e.g., Young, 128 Ill. 2d at 47, 538 N.E.2d at 471.

For example, in People v. Aguirre, 291 Ill. App. 3d 1028, 684 N.E.2d 1372, (2nd Dist. 1997), the appellate court concluded that "because the evidence was closely balanced, it is proper to invoke the plain error doctrine here." Aguirre, 291 Ill. App. 3d at 1035, 684 N.E.2d at 1377. Similarly, in People v. Buckley, 282 Ill. App. 3d 81, 89, 668 N.E.2d 1082, 1088 (3rd Dist. 1996), the appellate court stated that "[h]aving found that the evidence in this case was so closely balanced as to invoke the plain-error rule *** we must now turn to the merits of [defendant’s] argument." Conversely, if there is no fundamental error and the error is not closely balanced, the court need not invoke the plain error rule. Is such instance, the court need not consider the alleged error.

In addition to satisfying one or both of the alternatives of the basic test, a clear picture of the error must exist in the record of the case. At the appellate level, a clear picture of an error will exist only if the record clearly shows the existence of such an error, or there was a proper objection to the offered evidence at the trial stage. Because the doctrine of plain error operates only when no such objection has been made, for the doctrine to apply, the record must clearly show the existence of the error. People v. Precup, 73 Ill. 2d 7, 382 N.E.2d 227 (1978).

Thus, irrespective of the closeness of the evidence or the substantiality of the error, there cannot be plain error when the record does not present the issues to be resolved in sufficient detail. In fact, plain error must be apparent or conspicuous in order for the doctrine to apply. Precup, 73 Ill. 2d at 17, 382 N.E.2d at 231.

In its interpretation of the plain error rule, the Illinois Supreme Court has recognized that "Illinois courts strive to apply the waiver rules narrowly and consistently in conformity with the posture of the United States Supreme Court." People v. Berry, 99 Ill. 2d 499, 506, 460 N.E.2d 742, 745 (1984).

In U.S. v. Olana, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777 (1993), the United States Supreme Court held that "at a minimum, [a reviewing court] cannot correct an error pursuant to [the plain error rule] unless the error is clear under current law." Following this principle, the Illinois Supreme Court has stated that "before plain error can be considered *** it must be plainly apparent from the record that an error affecting substantial rights was involved." People v. Munson, 171 Ill. 2d 158, 196, 662 N.E.2d 1265, 1281 (1996).

However, in People v. Lann, 261 Ill. App. 3d 456, 633 N.E.2d 938, the first district appellate court invoked the plain error rule, but then remanded the case to determine whether error occurred, because there was no clear and apparent error from the record.

Courts have interpreted the plain error rules in other inconsistent ways. For example, it has been held that "[a]ll plain errors are reversible errors." Keene, 169 Ill. 2d at 17-18, 660 N.E.2d at 910 (1995); see also, United States v. Young, 470 U.S. 1, 105 S.Ct. 1038 (1985)(holding that plain error that will not justify reversal is to be rejected). However, other courts have invoked the plain error rule, only to then affirm a judgment. See e.g., People v. Cox, 179 Ill. App. 3d 239, 554 N.E.2d 360 (1st Dist. 1990).

Indeed, it has been noted that "‘plain error’ is a concept appellate courts find impossible to define, save they know it when they see it." W. Lafave, Search and Seizure §11.7(e)(3d ed. 1996), quoting C. Wright, Federal Practice and Procedure-Criminal §856 (2d ed. 1982). Whether plain error will or will not be invoked rests on the facts of the particular case, and the judges presiding. 5 Am. Jur. 2d Appellate Review §767-772 (1995); see also, Wangerin, "Plain Error" and "Fundamental Fairness": Toward a Definition of Exceptions to the Rules of Procedural Default, 29 DePaul L.Rev. 753, 766 (1980)(stating that fundamental fairness consists of "whatever a majority of an appellate court thinks it is in a specific case.")

Honorable Thomas J. Homer is a Justice of the Illinois Appellate Court, Third District. He received his Undergraduate Degree in 1970 from the University of Illinois and his Law Degree in 1974 from I.I.T./Chicago-Kent.

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