plain error in Illinois

2026Defendant only argues that the first prong of the plain error analysis applies, i.e., “the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error.” People v. Bever, 2019 IL App (3d) 170681, ¶ 38 (citing People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

2026Defendant acknowledges that the doctrine of judicial estoppel “was not explicitly invoked by name” in the trial court, but he maintains that he sufficiently raised the doctrine when defense counsel “point[ed] out the State’s inconsistent representations and the procedural unfairness of those representations.” Defendant recognizes, however, that the “issue was not preserved” because his posttrial motion “addressed the State’s custody argument rather than the underlying issue of prosecutorial inconsistency.” Accordingly, defendant asks this court to review the issue under plain error “to address

2026Defendant concedes that he failed to preserve this error in the court below, but he asks that we review this issue under the first prong of the plain error doctrine. 22 No. 1-24-0103 ¶ 65 The plain error doctrine allows a reviewing court to bypass normal forfeiture principles and consider an otherwise unpreserved error affecting substantial rights when either: “(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill. 2d 167, 187 (2005); see also Ill.

2026As the Illinois Supreme Court explained in People v. Herron, 215 Ill. 2d 167, 178-79 (2005): “The plain-error doctrine *** allows a reviewing court to reach a forfeited error affecting substantial rights in two circumstances.

2026“The plain-error doctrine is a narrow and limited exception.” People v. Hillier, 237 Ill. 2d 539, 545 (2010).

2026Plain error exists at sentencing when a clear error occurs, and “the evidence at the sentencing hearing was closely balanced.” People v. Hillier, 237 Ill. 2d 539, 545 (2010).

2026Plain error review is applicable when a defendant establishes that a “clear or obvious error occurred” and either “the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant” or the “error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.” Id. at 613 .

2026The court then discussed the plain error doctrine, “which allows a reviewing court to consider unpreserved claims of error in specific circumstances.” Id. ¶ 11 (citing People v. Thompson, 238 Ill. 2d 598, 613 (2010)).

2026People v. Lewis, 234 Ill. 2d 32, 43 (2009). ¶ 60 When addressing a claim of plain error and an alternative claim of ineffective assistance of counsel, appellate courts first consider whether the defendant has established a clear or obvious error. “ ‘Absent a clear or obvious error ***, neither the doctrine of plain error nor a theory of ineffective assistance affords any relief from the forfeiture.’ ” Gilker, 2023 IL App (4th) 220914 , ¶ 78.

2025“If error did occur, we then consider whether either prong of the plain-error doctrine has been satisfied.” People v. Sykes, 2012 IL App (4th) 111110, ¶ 31 (citing People v. Lewis, 234 Ill. 2d 32, 43 , (2009)).

2026“If error did occur, we then consider whether either prong of the plain-error doctrine has been satisfied.” People v. Sykes, 2012 IL App (4th) 111110, ¶ 31 (citing People v. Sargent, 239 Ill. 2d 166, 189-90 (2010)).

2026Jan. 1, 1967)), under which “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court,” and we construe them “identically.” People v. Hartfield, 2022 IL 126729, ¶ 49 (citing Herron, 215 Ill. 2d at 175 ); see also People v. Sargent, 239 Ill. 2d 166, 189 (2010); People v. Durr, 215 Ill. 2d 283, 296-97 (2005). 25 No. 1-23-2093 ¶ 69 Under the plain error doctrine, a reviewing court may consider an unpreserved error when there was a clear and obvious error and either (1) the evidence was so closely balanced that the err

2026Our supreme court has repeatedly held that “[a]n alleged one-act, one-crime violation is reviewable under the second prong of the plain-error doctrine because it affects the integrity of the judicial process.” People v. Smith, 2019 IL 123901, ¶ 14 ; see also People v. Coates, 2018 IL121926, ¶ 10; see also People v. Harvey, 211 Ill. 2d 368, 389 (2004). ¶ 25 Nonetheless, because “there can be no plain error if there was no error at all,” the first step in our analysis is to determine whether any error occurred.

2025The plain-error doctrine is applied where “(1) a clear 5 or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). ¶ 16 However, plain-error review is forfeited when the defendant invites

2026ANALYSIS ¶ 32 On appeal, defendant argues (1) the prosecutor improperly vouched for Boland’s credibility during rebuttal closing argument and (2) the trial court imposed an excessive sentence. ¶ 33 A. Prosecutorial Misconduct ¶ 34 First, defendant argues that he “was prejudiced when during closing arguments the prosecutor improperly vouched for the State’s only witness by stating that he would argue that the witness testified credibly.” Defendant acknowledges he forfeited the instant claim by failing to object at trial and raise it in his posttrial motion (see People v. Enoch, 122 Ill. 2d 176,

2025Generally, to preserve an issue for appeal, a defendant must object at trial and raise the issue in a posttrial motion (see People v. Enoch, 122 Ill. 2d 176, 186 (1988)), and a failure to take both of those preservative measures results in a procedural forfeiture of the issue (see People v. Bannister, 232 Ill. 2d 52, 65 (2008)). ¶ 31 Defendant seeks to avert a procedural forfeiture, however, by invoking the doctrine of plain error.

2025However, the supreme court has stated: “The plain-error doctrine is a limited and narrow exception to the general rule of procedural default [citation] and allows a reviewing court to consider unpreserved error when one of two conditions is met: ‘(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the int

2024Id.; see People v. Walker, 232 Ill. 2d 113, 124 (2009). ¶ 26 As our first step in the plain-error analysis, we must determine whether any error occurred at all.

2025Under such doctrine, we may excuse defendant’s procedural default when a clear and obvious error occurred and (1) “the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the 56 error,” or (2) the “error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” (Internal quotation marks omitted.) Sebby, 2017 IL 119445, ¶ 48 . “ ‘[I]f in the end, the error is found not to rise to the level

2024But if, in the end, the error is found not to rise to the level of a plain error as contemplated by Rule 615(a), the procedural default must be honored.’ ” Johnson, 208 Ill. 2d at 64 (quoting People v. Keene, 169 Ill. 2d 1, 17 (1995)). 38 ¶ 108 Every criminal defendant is entitled to a fair trial.

2026See Sebby, 2017 IL 119445, ¶ 52 (Rule 431(b) violation falls under first prong plain error “absent evidence that the violation produced a biased jury.”). ¶ 23 Here, we need not decide whether the circuit court erred in questioning the jury about the Rule 431(b) principles because we find that any such error does not rise to the level of plain error because the evidence of defendant’s guilt was not closely balanced. ¶ 24 “Where the defendant claims first-prong plain error, a reviewing court must decide whether the defendant has shown that the evidence was so closely balanced the error alone sev

2026See Sebby, 2017 IL 119445, ¶ 52 (Rule 431(b) violation falls under first prong plain error “absent evidence that the violation produced a biased jury.”). ¶ 23 Here, we need not decide whether the circuit court erred in questioning the jury about the Rule 431(b) principles because we find that any such error does not rise to the level of plain error because the evidence of defendant’s guilt was not closely balanced. ¶ 24 “Where the defendant claims first-prong plain error, a reviewing court must decide whether the defendant has shown that the evidence was so closely balanced the error alone sev

2026People v. Naylor, 229 Ill. 2d 584, 602-03 (2008); see generally People v. Herron, 215 Ill. 2d 167 , 180 n.1 (2005) (“The plain-error test *** is more aptly described as a standard to help a reviewing court determine when to excuse forfeiture.”). ¶ 53 Plain error review begins by asking whether an error occurred.

2026People v. Naylor, 229 Ill. 2d 584, 602-03 (2008); see generally People v. Herron, 215 Ill. 2d 167 , 180 n.1 (2005) (“The plain-error test *** is more aptly described as a standard to help a reviewing court determine when to excuse forfeiture.”). ¶ 53 Plain error review begins by asking whether an error occurred.

2026“Similarly, the failure of a defendant to show that an error occurred at all defeats both an ineffective assistance claim and a claim of error under either prong of the plain error doctrine.” Hensley, 2014 IL App (1st) 120802, ¶ 47 . ¶ 33 “The second-prong of the plain error rule can be invoked ‘only in those exceptional circumstances where, despite the absence of objection, application of the rule is necessary to preserve the integrity and reputation of the judicial process.’ ” People v. Jackson, 2022 IL 127256, ¶ 28 (quoting People v. Herrett, 137 Ill. 2d 195, 214 (1990)).

2025Thus, a defendant attempting to establish prong two plain error is asking the court to “excuse his forfeiture under a narrow and limited rule and under a prong of the limited rule that rarely applies.” Id. ¶ 83 Jackson further delineated the types of errors that qualify as prong two plain errors: “The second prong of the plain error rule can be invoked ‘only in those exceptional circumstances where, despite the absence of objection, application of the rule is necessary to preserve the integrity and reputation of the judicial process.’ People v. Herrett, 137 Ill. 2d 195, 214 (1990).

2022Under the plain-error rule, we “will review unpreserved error when a clear and obvious error occurs and: (1) the evidence is closely balanced; or (2) [the] error is so serious that it affected the fairness of -2- 2022 IL App (2d) 200535 the defendant’s trial and challenged the integrity of the judicial process.” Id. (citing People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), and People v. Hall, 194 Ill. 2d 305, 335 (2000)). ¶8 The right to a jury trial is a fundamental right guaranteed by the United States Constitution (U.S. Const., amends.

2022See People v. Hall, 194 Ill. 2d 305, 352 (2000) (To preserve an issue for purposes of appeal, the “defendant was required to make a contemporaneous objection at the sentencing hearing and to raise the issue in a post-sentencing motion.”) The defendant nevertheless asks this court to review his claim under the second prong of the plain error doctrine.

2026After reciting the two prongs of the plain error doctrine, the appellate court focused on the second, observing that this court “has equated second prong plain error with structural error.” Id. ¶ 12 (citing People v. Glasper, 234 Ill. 2d 173, 197-98 (2009)). ¶ 41 The appellate court then changed direction from second-prong plain error to “the rationale for, and the foundational requirement of, a probable cause determination in criminal cases by a preliminary hearing or a grand jury indictment.” Id. ¶ 13.

2025This court has equated the second prong of the plain error rule with ‘structural error.’ Thompson, 238 Ill. 2d at 613-14 (citing People v. Glasper, 234 Ill. 2d 173, 197-98 (2009)).

2026This prong requires “a systemic error which serves to erode the integrity of the judicial process and undermine[s] the fairness of the defendant’s trial.” (Internal quotation marks omitted.) Thompson, 238 Ill. 2d at 613 - 14; see also Hartfield, 2022 IL 126729, ¶ 49 (quoting Herron, 215 Ill. 2d at 193 (quoting People v. Hopp, 209 Ill. 2d 1, 8 (2004))) (“a jury instruction error rises to the level of plain error only when it “ ‘creates a serious risk that the jurors incorrectly convicted the defendant because they did not understand the applicable law, so as to severely threaten the fairness of

2025See People v. Hopp, 209 Ill. 2d 1, 8 (2004) (“[T]he erroneous omission of a jury instruction rises to the level of plain error only when the omission creates a serious risk that the jurors incorrectly convicted the defendant because they did not understand the applicable law, so as to severely threaten the fairness of the trial.”); People v. Grant, 2016 IL App (5th) 130416-B, ¶ 31 (“[I]n the criminal context, trial courts are required to give certain jury instructions sua sponte in order to ensure the defendant’s right to a fair trial.”).

2013The purpose of the plain error exception “is to correct any serious injustices which have been done to the defendant.” People v. Carlson, 79 Ill. 2d 564, 576 (1980).

2010The second prong of the plain error rule applies if "the error is so fundamental to the integrity of the judicial process and so prejudicial to the defendant that the trial court could not cure the error by sustaining an objection or instructing the jury to disregard the error." People v. Herrett, 137 Ill.2d 195, 215 , 148 Ill.Dec. 695 , 561 N.E.2d 1 (1990), citing People v. Carlson, 79 Ill.2d 564, 577 , 38 Ill.Dec. 809 , 404 N.E.2d 233 (1980). *529 Our supreme court has held that "a comment upon a defendant's post-arrest silence, while improper, is not an error of such magnitude as to clearly

2025See People v. Sims, 192 Ill. 2d 592, 621 (2000) (“Before invoking the plain error exception, *** ‘it is appropriate to determine whether error occurred at all.’ ” (quoting People v. Wade, 131 Ill. 2d 370, 376 (1989))).

2020People v. Wade, 131 Ill. 2d 370, 376 (“Before invoking the plain-error exception, it is appropriate to determine whether error occurred at all.”). ¶ 87 III.

2026The plain-error rule is not a “general savings clause” (People v. Precup, 73 Ill. 2d 7, 16 (1978)), but instead provides “a narrow exception to forfeiture principles designed to protect the defendant’s rights and the reputation of the judicial process.” People v. Moon, 2022 IL 125959, ¶ 21 .

2026However, the plain error rule is not a “general savings clause” (People v. Precup, 73 Ill. 2d 7, 16 (1978)), but instead it provides “a narrow exception to forfeiture principles designed to protect the defendant’s rights and the reputation of the judicial process.” Moon, 2022 IL 125959, ¶ 21 .

2025That said, in People v. Woods, 214 Ill. 2d 455 (2005), our supreme court explained that a defendant may raise a forfeited chain of custody issue for the first time on appeal if the alleged error rises to the level of plain error, such as “in those rare instances” where there is “a complete breakdown in the chain of custody,” i.e., there was no link between the substance recovered by the police and the substance tested.

2025Id. at 471-72 . ¶ 30 The plain error rule bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved claims of error in specific circumstances.

2026“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. *** Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.” Id. at 691-92 . ¶ 96 “When addressing a claim of plain error and an alternative claim of ineffective assistance of counsel, appellate courts first consider whether the defendant has established a clear or obvious error. ‘Absent a clear or obvious error ***, neith

2025Ineffective Assistance of Counsel ¶ 27 As an alternative to plain error, defendant argues defense counsel’s failure to include the issues related to the timeliness of the State’s petition and the detention hearing in defendant’s motion for relief constitutes ineffective assistance of counsel. ¶ 28 A defendant’s claim of ineffective assistance of counsel is analyzed under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

2024People v. White, 2011 IL 109689, ¶ 134 (Having found no prejudice, the court concluded “[t]here [was] no reason to go further for purposes of [an analysis] founded upon the closely balanced prong of plain error.”); People v. Davis, 233 Ill. 2d 244 , 273- 75 (2009) (“assuming arguendo,” there was error, the defendant could not establish prejudice for purposes of plain-error review). -9- ¶ 39 Under the first prong of the plain error rule, a defendant establishes prejudice by showing “that the evidence is so closely balanced that the alleged error alone would tip the scales of justice against him

2024People v. White, 2011 IL 109689, ¶ 134 (Having found no prejudice, the court concluded “[t]here [was] no reason to go further for purposes of [an analysis] founded upon the closely balanced prong of plain error.”); People v. Davis, 233 Ill. 2d 244 , 273- 75 (2009) (“assuming arguendo,” there was error, the defendant could not establish prejudice for purposes of plain-error review). -9- ¶ 39 Under the first prong of the plain error rule, a defendant establishes prejudice by showing “that the evidence is so closely balanced that the alleged error alone would tip the scales of justice against him