Monday, January 19, 2015

Supreme Court Clarifies Distinction Between Motions In Limine and Forfeiture in Criminal Cases Compared to Civil Cases

By Charlie Ingrassia
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

In People v. Denson, 2014 IL 116231, the Illinois Supreme Court held that a criminal defendant properly preserved an issue for appellate review where the State filed a motion in limine to admit co-conspirator statements, the defendant filed a response, and the trial court granted the motion after a full hearing. Forfeiture did not apply even though the defendant did not file his own motion in limine or make a contemporaneous objection at trial. The high court's opinion clarified that a defendant is not required to bring his or her own motion in limine so long as the evidentiary issue is litigated in limine, and further, a contemporaneous trial objection following the denial of a motion in limine is required in civil cases but not criminal cases.

In Denson, a jury convicted the defendant of first-degree murder,  armed robbery, and home invasion. Prior to trial, the State filed a six-page motion in limine to admit certain hearsay statements made by the defendant's co-conspirators. The trial court conducted a hearing on the motion and afforded both sides an opportunity to present arguments. The trial court granted the State's motion.

On appeal, the defendant argued that the trial court erred in granting the motion. The Appellate Court held that the defendant had forfeited this contention because he (1) did not file his own motion in limine to exclude the statements, and (2) did not raise a contemporaneous objection when the statements were admitted at trial. The reviewing court further held that, with one harmless exception, all of the statements were properly admitted.

The Supreme Court rejected the Appellate Court's forfeiture holding. The court first noted that, with respect to motions in limine, a criminal defendant preserves an issue for review by raising an objection in either a motion in limine or through a contemporaneous trial objection, and including the objection in a posttrial motion. The Supreme Court rejected the Appellate Court's conclusion that a criminal defendant must raise the objection in his own motion in limine, as opposed to raising it in response to the State's motion in limine. The Supreme Court concluded that the Appellate Court's emphasis on which party filed the motion in limine, as opposed to an objection being raised in a motion in limine regardless of the filing party, elevated form over substance. The purpose of forfeiture rules is to encourage defendants to raise an issue at trial to ensure both that the trial court had an opportunity to correct any errors before an appeal is taken and that a defendant does not obtain a reversal through his or her own inaction. The court noted that, regardless of which party initiated the motion in limine, the interests served were exactly the same.

Regarding a contemporaneous objection at trial, the Supreme Court emphasized that it has consistently held that, to preserve an issue for review, a criminal defendant must raise the objection in either a motion in limine or object at trial, and raise the objection in a posttrial motion. The Supreme Court noted that the Appellate Court correctly concluded that, "in other cases," the denial of a motion in limine was not enough to preserve an issue for review and that a contemporaneous objection at trial was necessary. However, the Appellate Court "went astray" in failing to recognize that those were civil cases and that "the forfeiture rules for civil and criminal cases are different."

After concluding that the defendant properly preserved the issue for review, the Supreme Court affirmed his conviction.

Recommended Citation: Charlie Ingrassia, Supreme Court Clarifies Distinction Between Motions In Limine and Forfeiture in Criminal Cases Compared to Civil CasesThe Brief, (January 19, 2015),

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