People v. Denson: The Illinois Supreme Court’s Primer on How to Properly Preserve a Contested Evidentiary Issue for
By Thomas A. Kantas
In People v. Denson1, the Illinois Supreme Court undertook a comprehensive analysis of the forfeiture doctrine in both a criminal and civil jury trial. The court held that in a criminal jury trial, an evidentiary objection contained in both a response to a motion in limine and a post-trial motion sufficiently preserves the issue for appellate review and does not require the attorney to raise a contemporaneous trial objection. This article analyzes the Denson decision and provides an explanation of its practical consequences for trial lawyers confronted with evidentiary issues that arise during the course of a criminal or civil jury trial.
Introduction. If during the course of a criminal jury trial the prosecution moves in limine to admit contested evidence, what evidentiary requirements does the law impose on trial lawyers necessary to preserve that issue for appellate review? Are the requirements different for civil cases? In People v. Denson2, the Illinois Supreme Court answers both questions and provides a thorough explanation of the requirements that apply to each scenario. During the murder prosecution of Darren Denson, the government moved in limine to admit “certain hearsay statements made by defendant’s coconspirators.”3 Denson filed a written response to the prosecution’s motion objecting to the admission of this testimony. After conducting a hearing on the motion, the trial judge admitted the contested testimony. Denton’s attorney did not raise a contemporaneous objection to the testimony during the trial.
Following the jury’s decision to convict, the trial court denied Denson’s post-trial motion which argued that the coconspirator testimony was admitted erroneously. The appellate court affirmed the trial court’s decision to admit the statements and held that Denson forfeited review of the issue on appeal for two distinct reasons: first, because he failed to file his own motion in limine to exclude the statements and second, because he failed to object during the trial. The Illinois Supreme Court accepted the appeal to resolve Denson’s contention that he did not forfeit appellate review of the admissibility of the coconspirator testimony.
People v. Denson. Before the Supreme Court, the prosecution conceded that the appellate court erred when it held that Denson was required to file his own separate motion in limine to bar the conspirator testimony and could not rely simply on his response to the motion filed by the government. The Supreme Court reiterated that in criminal cases a defendant preserves an issue for appellate review by “(1) raising it in either a motion in limine or a contemporaneous trial objection and (2) including it in the post-trial motion.”4
The Supreme Court upbraided the appellate court’s analysis that the “dispositive factor in determining whether an issue is preserved for review is not whether that issue was the subject of in limine litigation but rather which party filed the pleading that precipitated the in limine litigation” as an elevation of “form over substance to an unwarranted and unnecessary degree.”5 The forfeiture doctrine, which requires defendants to raise potential appellate issues in the trial court, 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 inaction.”6
The “critical consideration” identified by the Supreme Court is “not which party initiated the in limine litigation but rather whether the issue being raised [on appeal] was litigated in limine.”7 The party who initiates the in limine litigation is irrelevant because “as long as it occurs the interests served are exactly the same.”8 In Denson, the issue raised on appeal – the admissibility of the coconspirator statements – was the exact issue litigated in limine before the trial court both in the briefs and during a hearing which provided both parties with an opportunity to address the merits of their respective positions.
The Supreme Court rebuked further the appellate court’s requirement that a defendant file her own motion in limine as a measure that would “accomplish precisely nothing other than to clutter the record with duplicative pleadings.”9 The forfeiture doctrine is not imposed to “ensure that pretrial evidentiary issues are litigated twice . . . [but] rather 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.”10 The court held that Denson “properly preserved his objection to the admissibility of the contested statements” and likewise “raised the issue in a timely filed post-trial motion.”11
The Supreme Court also rejected the appellate court’s holding that obligated Denson to raise a contemporaneous trial objection to the admission of the coconspirator testimony when elicited during the prosecution’s presentation of evidence in order to preserve the issue for appellate review. The Court stressed that in criminal cases “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.”12
The appellate court indicated accurately that in certain trial scenarios “the denial of a motion in limine does not, by itself, preserve an objection to the admission of disputed evidence and that a contemporaneous trial objection also is required to preserve the issue for review.”13 The appellate court’s analysis “went astray,” however, because it failed to comprehend that the Supreme Court only requires a contemporaneous trial objection in civil cases “and that the forfeiture rules for civil and criminal cases are different.”14 The court emphasized that “it is only in civil cases that a contemporaneous trial objection is required [and that] this court has never required it in a criminal context.”15
The prosecution contended that Supreme Court jurisprudence has produced “uncertainty” and “inconsistency” in the criminal setting citing three decisions which required a contemporaneous trial objection to preserve an evidentiary issue for appellate review. The court rejected this assertion summarily and explained that the cases cited by the prosecution involved “routine trial errors that were not raised and could not have been raised in a motion in limine.”16 The court distinguished its “specific rule” that does not require a contemporaneous trial objection to preserve issues raised and litigated in limine “because the issue has been considered previously” from its “general rule” that does require a contemporaneous trial objection to preserve routine trial errors “because the issue has not been considered previously.”17 Finally, the prosecution urged the court to impose the civil rule requiring a contemporaneous trial objection to every contested evidentiary issue in criminal cases. The court expounded on the distinction between civil and criminal cases, explaining that “both the civil rule and the criminal rule require the objecting party to bring the in limine issue to the trial court’s attention one additional time.”18 The civil rule requires a contemporaneous trial objection while the criminal rule requires the defendant to file a post-trial motion. The court reasoned that such distinction makes “perfect sense” because post-trial motions are a “mandatory prerequisite to raising an issue on appeal in criminal cases, but they are not in many civil cases.”19 The court concluded, therefore, that Denson’s objections made both in the in limine litigation and in the post-trial motion adequately preserved for appellate review the propriety of the trial court’s decision to admit contested trial testimony.
Conclusion. In Denson, the Illinois Supreme Court addresses thoroughly and clearly the requirements a trial lawyer must satisfy during the course of a jury trial to avoid the forfeiture of an evidentiary issue when the case is reviewed subsequently on appeal. Denson also differentiates between the divergent requirements necessary to preserve an issue for appellate review in criminal and civil litigation. Given that contested evidentiary issues arise in almost every criminal and civil jury trial, lawyers should ensure familiarity with this opinion and understand its requirements.
1. People v. Denson, 2014 IL 116231 (2014).
3. Id. at ¶ 3.
4. Id. at ¶ 11.
5. Id. at ¶ 13.
6. Id. at ¶ 13.
7. Id. at ¶ 13.
8. Id. at ¶ 13.
9. Id. at ¶ 13.
10. Id. at ¶ 13.
11. Id. at ¶ 11, 13.
12. Id. at ¶ 18 (emphasis in original).
13. Id. at ¶ 19.
14. Id. at ¶ 19.
15. Id. at ¶ 19.
16. Id. at ¶ 21.
17. Id. at ¶ 21.
18. Id. at ¶ 23.
19. Id. at ¶ 23.
Thomas A. Kantas founded the Law Office of Thomas A. Kantas, P.C. concentrating in civil and criminal litigation. He received his undergraduate degree from the University of Illinois, a graduate degree from the University of Chicago, and his law degree from Chicago-Kent College of Law.