This chapter
was first
published by
IICLE .
®
Book containing this chapter and any forms referenced herein is available
for purchase at www.iicle.com or by calling 800-252-8062.
Criminal Law
JOSHUA SACHS
Joshua Sachs & Associates
Evanston and Chicago
®
©COPYRIGHT 2015 BY IICLE .
1—1
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
I. [1.1] Scope of Guide
II. Preliminary Thoughts
A. [1.2] Remember General Buford — Remember General
Custer
B. [1.3] Introductory Caveat
C. [1.4] If You Are Interested in a Criminal Practice
D. [1.5] Otherwise
III. [1.6] What Is a Criminal Case?
IV. [1.7] The Sources of Illinois Criminal Law
A. [1.8] Illinois Criminal Statutes
B. [1.9] Illinois Supreme Court Rules
C. [1.10] Constitutional Provisions
V. [1.11] How Do You Get Started in Your First Criminal
Case?
VI. [1.12] Representing the Client Under Arrest
A. [1.13] A Side Observation About Your Clients and the Truth
B. [1.14] Bailing the Client Out
C. [1.15] Initial Court Appearance
VII. Charge and Preliminary Hearing
A. [1.16] The Complaint
B. [1.17] Charge by Indictment
1—2
WWW.IICLE.COM
CRIMINAL LAW
C. [1.18] Charge by Information
D. [1.19] The Preliminary Hearing
VIII. [1.20] Arraignment and Plea
IX. [1.21] Discovery
A. [1.22] Felony Discovery
1. [1.23] To the Accused
2. [1.24] To the State
B. [1.25] Misdemeanor Discovery
X. [1.26] Motion Practice
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
[1.27] Motion To Dismiss Charge
[1.28] Motion for Bill of Particulars
[1.29] Motion To Discharge Jury Panel
[1.30] Motion for Continuance
[1.31] Motion for Substitution of Judge
1. [1.32] Motion as of Right
2. [1.33] Motion for Cause
[1.34] Motion for Change of Place of Trial
[1.35] Motion for Joinder of Related Prosecutions
[1.36] Motion for Severance
[1.37] Motion for List of Witnesses
[1.38] Motion To Produce Confession
[1.39] Motion To Suppress Confession
[1.40] Motion To Suppress Illegally Seized Evidence
[1.41] Other Motions
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1—3
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
XI. [1.42] Fitness
XII. [1.43] Investigating the Case
XIII. Negotiations with the Prosecution
A.
B.
C.
D.
[1.44] In General
[1.45] What Is There To Negotiate?
[1.46] Alternatives to Conviction or Imprisonment
[1.47] Special Courts
1. [1.48] Drug Court
2. [1.49] Veterans Court
3. [1.50] Mental Health Court
E. [1.51] Role of the Judge in Negotiations
F. [1.52] Reconsideration of, and Appeal from, Guilty Pleas
XIV. [1.53] Guilty Pleas
XV. [1.54] Speedy Trial
A. [1.55] Statutory Speedy-Trial Rights
B. [1.56] Constitutional Speedy-Trial Rights
XVI. [1.57] The Trial in a Criminal Case
A.
B.
C.
D.
E.
F.
1—4
[1.58]
[1.59]
[1.60]
[1.61]
[1.62]
[1.63]
In General
Stipulated Bench Trials
Motions in Limine
Order of Trial
Defenses
Jury Instructions
WWW.IICLE.COM
CRIMINAL LAW
XVII. [1.64] Preserving Your Record
A. Timely Motion or Objection
1. [1.65] Motion
2. [1.66] Objection
3. [1.67] Offer of Proof
4. [1.68] Error in Instructions
B. [1.69] Posttrial Motion
XVIII. [1.70] Sentencing
A.
B.
C.
D.
E.
F.
G.
[1.71]
[1.72]
[1.73]
[1.74]
[1.75]
[1.76]
[1.77]
Presentence Investigation Report
Sentencing Options
Victim-Impact Evidence
Hearing
Enhancements
Consecutive and Concurrent Sentences
Preserving the Record at Sentencing
XIX. [1.78] Appeal
XX. [1.79] Expungement and Sealing
XXI. [1.80] Criminal Cases in Federal Court
XXII. [1.81] Sources
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1—5
§1.1
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
I. [1.1] SCOPE OF GUIDE
This guide is intended to provide a general overview and introduction to
criminal law for the nonspecialist. It is devoted primarily to the defense of
felony and misdemeanor cases in the Illinois state courts, with a few
observations on criminal practice before the federal courts. The purpose of
the guide is to enable the reader to get oriented in a criminal case. It is
neither extensive nor detailed enough to serve as a guide through the actual
defense of a criminal prosecution.
II. PRELIMINARY THOUGHTS
A. [1.2] Remember General Buford — Remember General Custer
On July 1, 1863, on a country road west of Gettysburg, Pennsylvania,
cavalry General John Buford found his command suddenly confronting an
overwhelming enemy force. He recognized that he was in trouble over his
head and sent immediately for reinforcements. He then took a strong
defensive position and waited for help to arrive. His caution and foresight
went far toward winning the Battle of Gettysburg.
On June 25, 1876, in a desolate river valley in Montana, cavalry General
George Armstrong Custer found his command suddenly confronting an
overwhelming enemy force. He failed to recognize that he was in over his
head and led his regiment to disaster rather than admit that the situation was
too big for him. By the time reinforcements arrived, it was too late.
When the day comes that you are asked to take on a criminal case, and if
criminal law is not your field, remember General Buford. And remember
General Custer.
NOTE: Good historical accounts of Buford’s holding action at Gettysburg
include Bruce Catton’s THE ARMY OF THE POTOMAC: GLORY ROAD
(1952) and, for a more detailed treatment, Edwin B. Coddington’s THE
GETTYSBURG CAMPAIGN: A STUDY IN COMMAND (1997). A fine
fictional account appears in Michael Shaara’s novel, THE KILLER
ANGELS (2007). The accounts of Custer’s fatal battle in the Little Bighorn
1—6
WWW.IICLE.COM
CRIMINAL LAW
§1.4
Valley probably number in the hundreds. One of the best is Evan S.
Connell’s SON OF THE MORNING STAR: CUSTER AND THE LITTLE
BIGHORN (1997). Although still addressed as “General” by social usage,
Custer was actually a Lieutenant Colonel at the time of his last fight in 1876,
his temporary commission as Brigadier General having terminated with the
demobilization of volunteer troops at the end of the Civil War.
B. [1.3] Introductory Caveat
It is with some trepidation that I offer an introduction to criminal
practice to the nonspecialist. Under Illinois law, any licensed attorney is
permitted to represent a defendant in any noncapital criminal case. Only for
death penalty cases, which do not exist under current Illinois law, was there
a specially qualified bar. Illinois Supreme Court Rules 416, 714. But while
the defense of criminal prosecutions is not, in general, more difficult than
other specialized areas of the law, it is a dangerous place to go to school.
Certainly we learn our best lessons from our mistakes, and in this regard
criminal practice is no different from any other subject. But the price of a
mistake in a criminal case can be a prison sentence for the client who
depends on you.
I encourage you to develop a degree of familiarity with criminal law and
practice and to take on the defense of criminal cases, but you absolutely
must recognize your limitations and be prepared to put in the time and effort
necessary to learn the subject before you agree to accept a criminal case
alone. Until that time, look for opportunities to learn.
C. [1.4] If You Are Interested in a Criminal Practice
Are you seriously interested in a practice devoted largely to criminal
cases? If you are, the best way to learn the field is by spending time in a
good, well-run prosecutor’s or public defender’s office. My personal
recommendation for learning is always to seize the laboring oar. You will
learn the law best by spending a year or two in the appellate section of a
defender’s office. As the appellant in virtually all of your cases, you will
have to identify and develop the issues on appeal and you will become
acutely aware of the obstacles placed in your way by the mistakes made by
trial counsel. You will also learn how to make and preserve a record for
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1—7
§1.5
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
appeal, an essential subject that too many trial lawyers have not mastered.
Although service in the appellate section of the prosecutor’s office can also
be a valuable experience, representation of the state on appeal is, in
comparison to representation of the defendant, like shooting fish in a barrel
and is not comparable training.
On the other hand, once you have a good grounding in criminal law and
procedure and you are ready to apply your work in the trial court, I say again
seize the laboring oar and spend time in the state’s attorney’s office. As the
prosecutor you must develop, plan, and present the entire case and meet the
burden of proof. You will have an unparalleled opportunity to work with
witnesses of all sorts on both direct and cross-examination, and you will try
cases against many different attorneys from the very best to the very worst. I
do not believe that trial experience doing criminal defense work, in which
your efforts are essentially a negative response to the initiatives of the
prosecutor, affords a comparable education. Many defense lawyers would
disagree with me about this.
It may be a course that few will care to follow, but I believe the best
training for the practice of criminal law is solid experience of appellate work
for the defense, followed by experience in the trial court as a prosecutor.
Mine may be a minority opinion. Whatever route you choose to get there,
you will need to provide yourself with a firm grounding both in substantive
and procedural criminal law and in the reality of trial practice.
D. [1.5] Otherwise
I assume that most lawyers reading this guide are not looking forward to
developing a primarily, or even largely, criminal practice. So what I have to
say is offered for the benefit of the generalist, or the specialist in other areas,
who is called on to have occasional contact with criminal cases.
III. [1.6] WHAT IS A CRIMINAL CASE?
A criminal case is a legal action brought by the government asking as
relief that the defendant be punished for committing a wrong against society
at large. It is not a private action for redress of an injury, but a public action
1—8
WWW.IICLE.COM
CRIMINAL LAW
§1.6
to punish the defendant for a violation of a specified criminal statute. Federal
criminal cases, which allege violations of federal criminal law, are brought
in the name of the United States of America, e.g., United States of America
v. Ralph Ross. Prosecutions for violations of Illinois state law are brought in
the name of the People of the State of Illinois, e.g., People of the State of
Illinois v. Brendan Brass. Other states use other formulas, e.g.,
Commonwealth of Virginia v. Josephine Jelicoe. Prosecutions for violations
of municipal ordinances, which are considered quasi-criminal, are brought in
the name of the municipality, e.g., City of Chicago v. William West.
You will not find yourself entirely at sea in a criminal case. Criminal
and civil practice, in fact, have many similarities. For example:
• The charge in a criminal case, whether it be called a complaint, an
information, or an indictment, is analogous to the complaint in a civil case.
• The defendant’s plea in a criminal case, although normally a simple
oral statement of “guilty” or “not guilty,” is procedurally analogous to the
defendant’s answer in a civil case.
• The attorney’s investigation in a criminal case is fundamentally the
same as would be the investigation in a civil case arising out of the same
facts.
• Although discovery procedures are significantly different, criminal
discovery, like civil discovery, is governed by rules of court, by statute, and
by caselaw.
• Although criminal motion practice is very different from that in
civil cases, the basic procedure of filing, briefing, hearing, and arguing
motions will not be totally unfamiliar to an attorney accustomed to civil
motion practice.
• Although there are some differences in the rules of evidence and a
major difference in the burden of proof, a criminal trial is fundamentally the
same proceeding as a civil trial.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1—9
§1.7
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
On the other hand, there are many differences between criminal and
civil cases; among the most important:
• The prosecution bears the burden of proving every element of the
crime charged beyond a reasonable doubt. The civil burden of
preponderance of the evidence does not apply. The defendant has no burden
of proof.
• Discovery plays a minimal role compared to its place in civil
proceedings.
• In the event of a criminal conviction, the attorney plays a critical
role in sentencing, a proceeding with no direct civil counterpart.
• The constitutional protections that surround the criminal defendant
are implicated at virtually every stage of the proceedings.
IV. [1.7] THE SOURCES OF ILLINOIS CRIMINAL LAW
The criminal law of Illinois is found primarily in state statutes, in the
Illinois Supreme Court Rules, and in Illinois caselaw. In addition, Illinois
criminal law and procedure is governed by provisions of the United States
Constitution and of the Constitution of the State of Illinois. Because the
federal constitutional rights of the defendant are an important consideration
in every criminal case, federal caselaw may be binding or persuasive in
some circumstances.
A. [1.8] Illinois Criminal Statutes
A popular one-volume compilation of Illinois criminal statutes runs to
well over 1,500 pages. WEST’S ILLINOIS CRIMINAL LAW AND
PROCEDURE (2015). There are provisions that most criminal attorneys will
never encounter in a lifetime of active practice, but the most important
statutes are as follows:
720 ILCS — Criminal Offenses. Chapter 720 includes the Criminal
Code of 2012, 720 ILCS 5/1-1, et seq., and definitions of numerous offenses
1 — 10
WWW.IICLE.COM
CRIMINAL LAW
§1.9
not part of the Code. This chapter sets out the basic concepts of Illinois
criminal law including certain basic rights of the defendant (720 ILCS 5/3-1,
et seq.); principals of criminal liability (720 ILCS 5/4-1, et seq.); parties to
crime, including the important concept of accountability for the conduct of
another (720 ILCS, 5/5-1, et seq.); responsibility, including such concepts as
the effect of infancy, insanity, and intoxication on criminal liability (720
ILCS 5/6-1, et seq.); justifiable use of force and related defenses including
compulsion, necessity, and entrapment (720 ILCS 5/7-1, et seq.); and
inchoate offenses such as attempt, solicitation, and conspiracy (720 ILCS
5/8-1, et seq.). Most of Chapter 720 is devoted to setting out the definitions
of specific criminal offenses, both those included in the Criminal Code of
2012 and those outside it.
725 ILCS — Criminal Procedure. Chapter 725 includes the Code of
Criminal Procedure of 1963, 725 ILCS 5/100-1, et seq., in which are found
the basic criminal procedural statutes, and additional procedural statutes not
part of the Code. The Code contains statutes governing rights of the accused,
fitness for trial, proceedings after arrest, proceedings to commence
prosecution, proceedings prior to trial, proceedings at trial, and proceedings
after trial. The most important of these statutes are addressed in detail below
in the course of this guide.
730 ILCS — Corrections. By far the most important part of Chapter
730 for the criminal defense attorney is Chapter V of the Unified Code of
Corrections, 730 ILCS 5/5-1-1, et seq., which covers sentencing. This
lengthy chapter addresses diversion for specialized treatment, presentencing
and sentencing procedures, general sentencing provisions for various classes
of offenses, sentences of probation and conditional discharge, sentences of
periodic imprisonment, sentences of imprisonment, electronic home
detention, fines, and related matters.
Other statutes. Other important criminal and quasi-criminal statutes are
found in the Illinois Vehicle Code, 625 ILCS 5/1-1, et seq., and in the
Juvenile Court Act of 1987, 705 ILCS 405/1-1, et seq.
B. [1.9] Illinois Supreme Court Rules
Many procedural aspects of Illinois criminal practice are governed by
the Illinois Supreme Court Rules. Article IV (Rules 401 – 500) covers
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 11
§1.10
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
criminal proceedings in the trial court and includes such topics as guilty
pleas, discovery, and trials. Article V (Rules 501 – 600) includes rules for
lesser offenses such as traffic and conservation offenses, ordinance and petty
offenses, and some misdemeanors, and bail schedules for these kinds of
charges. Article VI (Rules 601 – 700) includes rules relating to criminal
appeals, to postconviction cases, and to juvenile matters.
C. [1.10] Constitutional Provisions
Provisions of the United States Constitution that frequently have an
effect on state criminal proceedings include the arrest, search, and seizure
provisions of the Fourth Amendment; the right not to be compelled to bear
witness against oneself found in the Fifth Amendment; and the rights to
speedy trial, jury trial, and counsel found in the Sixth Amendment. All of
these are applicable to state court proceedings under the Due Process Clause
of the Fourteenth Amendment. Fourteenth Amendment due process is itself
a right applicable in every criminal case. Roughly similar, and sometimes
broader, provisions are found in Article I, §§2, 6, 7, 8, 9, 10, 11, 12, and 13,
of the Constitution of the State of Illinois.
V.
[1.11] HOW DO YOU GET STARTED IN YOUR
FIRST CRIMINAL CASE?
Here is the best way to get started in your first criminal case: You go to
a criminal attorney whose work you know and respect and offer to assist on
one or two cases, without a fee if necessary. You work the cases through
with your mentor. When you have done this a few times, you have a pretty
good idea of what you can handle and what you cannot.
But here is the way it really happens: You are at home in bed at 2:00
a.m. The telephone rings. It is one of your regular clients, maybe calling
from the police station, under arrest; or maybe calling from home to tell you
that a family member has just been arrested. You have never handled a
criminal case before. What do you do?
Well, you had better get your shoes on and get ready for a trip to the
police station. Before you do that, though, find out everything you can from
your caller. Where is your putative client? You do not want to go to the
1 — 12
WWW.IICLE.COM
CRIMINAL LAW
§1.12
wrong station. How long has the client been in custody? What is the case
about? You do not need detail at this point, but you do need to know
whether you are dealing with a traffic case, a burglary, or a multiple murder.
Has a bond been set? How much? Can the defendant, or the family, post it?
PRACTICE POINTER

If you are actually talking to a client who is at the police station,
keep the conversation short and do not discuss the facts of the case
at all. The call may be recorded; or your client’s end of the
conversation may be overheard. Ask leading questions to get the
basic information you need. Restrict your client to “yes” or “no”
responses.
If the case is a minor traffic matter, bond has been set, and the family is
on the way down to post it and bail the defendant out, you are in luck. Make
an appointment for the morning and go back to bed.
Otherwise, it is down to the station you go.
VI. [1.12] REPRESENTING THE CLIENT UNDER
ARREST
The time immediately after a client’s arrest is perhaps the most crucial
in the entire case. A blunder or lack of energy at this point can be fatal — in
a death penalty case, literally so.
When you get to the station (remembering, of course, to bring your
driver’s license, Attorney Registration and Disciplinary Commission card,
and local attorney card if your county issues one), they let you right in to see
your client. What happens if they do not? See, e.g., Escobedo v. State of
Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758 (1964). Or what if the
family asked for you, but the client has not requested counsel? See, e.g.,
Moran v. Burbine, 475 U.S. 412, 89 L.Ed.2d 410, 106 S.Ct. 1135 (1986). Cf.
People v. McCauley, 163 Ill.2d 414, 645 N.E.2d 923, 206 Ill.Dec. 671
(1994). This is a headache that you should not have to face your first time
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 13
§1.12
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
out, and fortunately it does not happen often anymore. If it does happen to
you, talk to the highest officer on duty and respectfully demand to see your
client. If you are refused, make note of everything that has happened,
including names, places, and times. And do not expect to act as attorney in
the case any longer. You are now a witness. Cf. Escobedo, supra.
But typically the police will escort you back to see your client and give
you a place to talk alone. At this stage you want to emphasize three points to
the client:
a. Your interview is confidential. People v. Adam, 51 Ill.2d 46, 280
N.E.2d 205 (1972). Whether you remain on the case all the way through or
whether another attorney takes it over, you and your client have a
confidential attorney-client relationship. You cannot disclose what your
client has told you to anybody without the client’s consent — not to the
police, not to the prosecutor, not to the judge, not to the client’s own family.
You are there to assist your client. You have no other duty. “To bring in a
lawyer [at a custodial interrogation] means a real peril to solution of the
crime because, under our adversary system, he deems that his sole duty is to
protect his client — guilty or innocent — and that in such a capacity he owes
no duty whatever to help society solve its crime problem.” Watts v. State of
Indiana, 338 U.S. 49, 93 L.Ed. 1801, 69 S.Ct. 1357, 1358 (1949) (Jackson,
J., concurring).
b. Your client has a constitutional right to remain silent and must
exercise it. Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489
(1964); People v. Ellis, 199 Ill.2d 28, 765 N.E.2d 991, 262 Ill.Dec. 383
(2002). It is not enough to say, “Don’t make any statement to the police.”
Nine clients out of ten will think that means they can talk all day to the
detective as long as they do not sign a written statement. Order the client in
no uncertain terms not to talk to the police, the prosecutor, or anybody else.
Beyond giving booking information (e.g., name, date of birth, etc.), the
answer to all approaches from the police or the prosecutor must be a polite
but firm, “I’m sorry, Officer, but my attorney has instructed me not to
discuss the case at all.” In a serious case, I come to the police station with a
letter addressed to the case officer stating that the client is exercising the
Fifth Amendment privilege at my instructions and is not to be questioned
outside of my presence. Any questions on the case are to be addressed to me.
1 — 14
WWW.IICLE.COM
CRIMINAL LAW
§1.12
Make sure the client understands this. Most officers and prosecutors will
respect an assertion of the right to remain silent. Then again, there are those
who will not. The client may be approached repeatedly and encouraged to
talk. You cannot live at the police station. The client will have to be firm.
Make sure the client understands not to discuss the case with anybody.
Friends, family members, coworkers — anybody is a potential witness for
the prosecution. In some cases, even the spousal privilege does not apply.
See 725 ILCS 5/115-16. Above all, make sure the client does not discuss the
case with other prisoners. Clients who talk in jail see their cellmates again
on the witness stand. This is particularly true of codefendants.
PRACTICE POINTER

Do not fall for letting the police question the client in your presence,
either. There are cases in which you may eventually want your
client to talk to the police in your presence, but those cases are rare
indeed, and the initial postarrest period, when your client is under
enormous stress and your knowledge of the case is at its absolute
minimum, is not the right time to even consider such a step. Assert
your client’s right to remain silent and stick to it.
c. Finally, your client has to understand that the case will move a step
at a time. You are in no position at this initial stressful visit to predict what is
going to happen in the case. Be optimistic, by all means, and assure the
client that everything that can be done to help will be done. But you owe
your client a duty of candor, and that means making no promises and
making no guarantees about the future. At this stage you do not know the
case, you do not know the evidence, and you do not know what the ultimate
charge will be. The client will want and need reassurance, but beware of
giving false comfort by promising what you may not be able to deliver.
Having made your points, find out what you can about the case from
your client. Get a general account of the situation and probe far enough to
see whether there are any witnesses who should be contacted immediately or
any evidence that must be preserved. Keep this first interview simple.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 15
§1.13
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
A. [1.13] A Side Observation About Your Clients and the Truth
I remind my clients, both at the initial interview and later, that our
relationship is protected by strict confidentiality, and I encourage them to be
truthful with me. The inevitable fact is, however, that your clients will
frequently shade the truth with you to a lesser or greater degree. That comes
with the territory. What can you do about it?
Sometimes it helps to explain that you are going to fight the case as hard
as you can regardless of what the facts are. Sometimes it helps to explain
that the worst thing that can happen is for you to be taken by surprise
because your client withheld information from you. However, some clients
are just not going to be honest with you.
You must try never to base a critical decision in a criminal case on the
uncorroborated word of your client.
B. [1.14] Bailing the Client Out
You have explained confidentiality. You have warned your client in no
uncertain terms to keep quiet. You have obtained some general information
about the case. What next?
Can your client post bail and go home? First of all, it is not your job to
post bail for your client. That seems obvious, but you will be asked, from
time to time, to post a client’s bond, usually by clients who are evasive about
where your fee is coming from. The polite answer is that Illinois statute
prohibits an attorney from posting bail for anyone. 725 ILCS 5/110-13.
S.Ct. Rules 526 – 528 establish default bond schedules for most traffic
offenses, conservation offenses, and misdemeanors. If no judge is readily
available to set bond, the client can obtain release by paying the bond
according to the applicable rule. In certain misdemeanor cases and in
felonies, bond must be set by a judge. If your client has been taken into
custody on an arrest warrant, the bond set generally will be shown on the
warrant. Otherwise, the client will be taken in front of a judge for bond
setting. If your county has a night bond court or provision for an emergency
bond judge, you may see some reasonably fast action. If not, your client will
have to spend the night, or the weekend, in jail. The police or the sheriff
1 — 16
WWW.IICLE.COM
CRIMINAL LAW
§1.15
should be able to tell you what procedures your county has for night and
weekend bond setting. You always have a right to ask the court by motion to
reconsider and reduce the bond.
The court may grant a recognizance bond, which does not require the
deposit of any money. 725 ILCS 5/110-2. If a deposit bond is ordered,
Illinois ordinarily requires that the defendant post 10 percent of the bond set,
although a defendant charged with an offense under the Illinois Controlled
Substances Act, 720 ILCS 570/100, et seq., may be required to deposit 100
percent of the bond. 725 ILCS 5/110-7(a). In other words, a defendant
normally will be released upon depositing $100 on a $1,000 bond, $1,000 on
a $10,000 bond, and so on. At the conclusion of the case, the deposit is
returned less a bond charge and any fees or fines that may be ordered by the
court. If the defendant violates the bond, the entire amount becomes due and
the court will enter judgment accordingly.
In certain exceptional circumstances, the court has authority to deny bail
altogether. 725 ILCS 5/110-4, 5/110-6.1, 5/110-6.3.
The statutes governing bail and bail procedure are found at 725 ILCS
5/110-1, et seq. Professional bail bondsmen are illegal in Illinois. Schilb v.
Kuebel, 46 Ill.2d 538, 264 N.E.2d 377 (1970); People ex rel. Gendron v.
Ingram, 34 Ill.2d 623, 217 N.E.2d 803 (1966).
C. [1.15] Initial Court Appearance
The initial court appearance typically is very brief. The judge will set
bond, if that has not already been done, and will set a date for preliminary
hearing. In Cook County, this is something of an assembly-line procedure.
Once the initial appearance is over, the immediate stress of arrest is past
and the case is no longer a legal emergency. Your client either will bond out
or, if unable to make bond, will be held in jail pending further proceedings.
Now is the time to have a first really detailed discussion of the case with
your client. Learn everything about the facts that you can and give yourself a
basis to begin your investigation. If your client is on bond, meet at your
office. If your client is in custody, go to the jail.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 17
§1.16
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
Now is the time, too, to decide what your role in the case will be. Is this
a case you can handle alone, a case you can handle only with help, or a case
that you had better refer elsewhere? If you are going to need help, bring it in
early. If you need the assistance of more experienced counsel at your side,
now, before the preliminary hearing, is the time to get it.
VII. CHARGE AND PRELIMINARY HEARING
A. [1.16] The Complaint
A criminal charge in Illinois is usually initiated by the filing with the
circuit court of a sworn complaint. The complaint may be signed by the
actual complainant (current Illinois statutes refer to the complainant as the
“victim,” but this usage implies a prejudgment of a fact in issue and should
be abolished), but is often executed by a police officer. It is typically a short
document reciting the charge in the language of the statute that the defendant
is alleged to have violated.
If the charge is a misdemeanor, i.e., a charge for which the maximum
penalty is less than one year in jail, the case may be prosecuted on the basis
of the complaint. But if the case is a felony, i.e., a charge for which the
maximum penalty is one year or more in prison, the case must be prosecuted
on a more formal charging document, either an indictment or an information.
The important point is that the decision to prosecute a felony cannot be
made by the police, the prosecutor, or the purported “victim,” but is subject
to independent review. The permission of a judge or of a grand jury is
required, and such permission can be obtained only by a showing that the
prosecution has probable cause to pursue the case.
B. [1.17] Charge by Indictment
If the state elects to proceed before a grand jury and succeeds in
establishing probable cause, the grand jury itself makes the charge against
the defendant. The charge presented by the grand jury is called an
indictment. Unless the grand jury issues a subpoena for the defendant, which
rarely happens in Illinois state court proceedings, the role of defense counsel
at the grand jury stage is virtually nonexistent.
1 — 18
WWW.IICLE.COM
CRIMINAL LAW
§1.19
C. [1.18] Charge by Information
If the state elects, however, to make its showing of probable cause
before a judge, the case goes to preliminary hearing. People v. Redmond, 67
Ill.2d 242, 367 N.E.2d 703, 10 Ill.Dec. 250 (1977). A preliminary hearing is,
in effect, an abbreviated trial at which the state bears a low burden of proof
and obtains limited relief if that burden is satisfied. The prosecution’s
burden is to establish probable cause to believe that the defendant committed
the offense that it seeks to charge. Probable cause is a lower burden than the
civil burden of preponderance of the evidence. Basically, it means a showing
of well-grounded suspicion. If the court, after hearing evidence, makes a
finding of probable cause, the prosecutor gets permission to pursue the case.
The charge brought by the state’s attorney following a preliminary hearing is
called an information.
D. [1.19] The Preliminary Hearing
The issue before the court at the preliminary hearing is whether the state
can make a showing of probable cause. The state is not obligated to put on
all its evidence and usually prefers to put on as little as possible. The rules of
evidence are relaxed. Hearsay is permitted, and a finding of probable cause
can be based entirely on hearsay testimony. You may find that the only
witness against you is a detective who responds to questions in the form,
“Officer, during the course of your investigation, did you learn . . . ?”
The state’s attorney’s office often uses the preliminary hearing to
winnow out cases that it does not want to pursue, but if the prosecution is
serious about the case, you must expect that it will be able to satisfy its low
burden of proof before the preliminary hearing judge. Warn your client in
advance that this is to be expected.
Of what use is the preliminary hearing to defense counsel? You get an
initial overview of the prosecution’s case. If the case is simple, you may get
a preview of virtually the whole thing. You have an opportunity to crossexamine every witness called by the state. In a weak case, your crossexamination may result in a finding of no probable cause. Even when this
does not happen, you may be able to develop a picture of the facts and to pin
down the prosecution witnesses with testimony given under oath. Expect
that the prosecutor will try to restrict your cross-examinations with the
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 19
§1.19
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
objection that “a preliminary hearing is not a discovery proceeding.” Try to
show the judge that your questions are relevant to the probable cause issue
before the court. Once the court finds that probable cause has been
established, it can terminate the hearing. People v. Bonner, 37 Ill.2d 553,
229 N.E.2d 527 (1967). Although the defendant can waive the preliminary
hearing (People v. Redmond, 67 Ill.2d 242, 367 N.E.2d 703, 10 Ill.Dec. 250
(1977)), it is not normally wise to do so.
If the court finds probable cause, the state can prosecute the case by
information without a grand jury indictment. There is no substantive
difference between an indictment and an information. Either method is
proper for charging any felony. Which method to employ in a given case is
in the discretion of the prosecutor.
Be aware that a finding of no probable cause at the preliminary hearing
is not final. The prosecutor can take the same evidence to a grand jury and
obtain an indictment, or even in some circumstances can obtain a second
preliminary hearing. People v. Kent, 54 Ill.2d 161, 295 N.E.2d 710 (1972);
People v. Overstreet, 64 Ill.App.3d 287, 381 N.E.2d 305, 21 Ill.Dec. 227
(4th Dist. 1978). Winning the case at the preliminary hearing is not always
the last word.
It is difficult to imagine a case in which the defense would want to
present testimony at a preliminary hearing and virtually impossible to
imagine a situation in which the defendant should testify at this stage of the
proceedings.
PRACTICE POINTER

Do not put your client on the stand at the preliminary hearing!
How serious is the case against your client? In Illinois, criminal offenses
are classified according to the possible prison sentences authorized by
statute. The classifications are as follows (730 ILCS 5/5-4.5-10, et seq.):
1 — 20
WWW.IICLE.COM
CRIMINAL LAW
§1.19
Felonies
First-degree murder:
Class X:
Class 1:
Class 2:
Class 3:
Class 4:
natural life, or 20 – 60 years imprisonment
6 – 30 years
4 – 15 years
3 – 7 years
2 – 5 years
1 – 3 years
Misdemeanors
Class A:
Class B:
Class C:
any term less than one year
not more than 6 months
not more than 30 days
In addition to felonies and misdemeanors, Illinois law makes provision for
business offenses and petty offenses. 730 ILCS 5/5-4.5-10, 5/5-4.5-75,
5/5-4.5-80. A defendant may also be charged with the violation of a
municipal ordinance.
The above classifications will give you a rough idea of the gravity of the
charge that your client is facing. But actual determination of a sentence is far
more complicated. In many cases, a convicted defendant will be eligible for
probation or conditional discharge. On the other hand, some defendants will
be exposed to extended-term sentences (sentences in excess of the normal
statutory maximum) or to consecutive sentences. Some charges are lowgrade misdemeanors for a first offense, but become more serious
misdemeanors or even felonies on a second or third offense. Stringent
enhancements for the possession or use of a firearm apply to many offenses
(e.g. 730 ILCS 5/5-8-1(a)(1)(d)). See §1.75 below. For some offenses, the
statute defining the offense provides for a sentence different from those in
the foregoing table. At the beginning of a case it is not always possible to
form more than a general estimate of the potential sentence to which your
client is exposed. Dispositions and sentencing are discussed in more detail in
§§1.70 – 1.77 below.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 21
§1.20
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
The statutes governing initial court appearances and the preliminary
hearing are at 725 ILCS 5/109-1, et seq. The statutes governing charging of
an offense are found at 725 ILCS 5/111-1, et seq. Those governing grand
jury proceedings are at 725 ILCS 5/112-1, et seq.
VIII. [1.20] ARRAIGNMENT AND PLEA
After the grand jury has returned an indictment or the prosecutor has
filed an information, the defendant appears before the court for arraignment
and plea.
“Arraignment” means the formal act of calling the defendant
into open court, informing him of the offense with which he is
charged, and asking him whether he is guilty or not guilty. 725
ILCS 5/102-4.
Unless the defendant waives formal reading, the court will read the
indictment or information aloud. 725 ILCS 5/113-1.
The defendant may plead guilty, not guilty, or guilty but mentally ill at
arraignment. 725 ILCS 5/113-4. In addition, a defendant charged with a
violation of the Illinois Income Tax Act, 35 ILCS 5/101, et seq., may, with
the consent of the court, plead nolo contendere. 725 ILCS 5/113-4.1. Unlike
the answer in a civil case, which responds to each allegation of the
complaint, the plea in a criminal case is a simple statement: “guilty”; “not
guilty”; etc. The effect of a plea of not guilty is to require the state to
produce proof beyond a reasonable doubt of the defendant’s guilt.
Unless you have reached a satisfactorily agreed disposition with the
prosecutor, it is generally premature to consider a plea of guilty at
arraignment. It is difficult to imagine any case in which a plea of guilty but
mentally ill should be offered at this early stage of the proceedings. See
§1.62 below. If (a) the case is very simple and (b) you have already reached
a fully satisfactory agreement with the prosecutor that the judge has
approved, then you can resolve the case on a guilty plea at arraignment. In
general, however, the only safe course at this stage is to enter a plea of not
guilty.
1 — 22
WWW.IICLE.COM
CRIMINAL LAW
§1.22
IX. [1.21] DISCOVERY
Discovery in criminal cases is very different from what attorneys are
accustomed to in civil practice. It is not reciprocal, and it is far more
restrictive. Criminal discovery is governed, conceptually, by two factors that
are entirely foreign to civil cases. First, one side invariably enjoys an
overwhelming superiority in its capacity to conduct an investigation.
Second, the other side enjoys constitutional protection from disclosure.
No criminal defendant can match the investigatory power and resources
of the state. The full capacity and authority of the police are available to the
prosecution. While this power is not put forward in every case, and while
many a minor crime is casually investigated by one or two officers, the
power is always there in reserve, and a major criminal case may involve
scores, and sometimes hundreds, of investigators, technicians, and experts
from local, state, and federal police agencies. The use of military-type
intelligence aircraft to assist the local police is not unknown.
On the other side, the defendant is protected by the Fifth Amendment to
the U.S. Constitution, which provides: “No person . . . shall be compelled in
any criminal case to be a witness against himself.” This protection is
applicable in state criminal proceedings under the Fourteenth Amendment
(Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489 (1964)), and a
comparable guarantee is found in the Illinois Constitution (ILL.CONST. art.
I, §10).
Some discovery is available as a matter of constitutional right. Brady v.
State of Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). In
general, however, discovery in Illinois felony cases is governed by the
Illinois Supreme Court Rules and by the discretion of the court. Discovery in
misdemeanor cases is governed by statute.
A. [1.22] Felony Discovery
S.Ct. Rule 412 governs discovery to the defendant. S.Ct. Rule 413
governs discovery to the state. According to these rules, discovery is not
automatic but must be initiated by motion. In some counties, however, it is
the practice for the court to enter a standard discovery order in every case
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 23
§1.23
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
based on the provisions of these two rules. When such a standard order is
entered, counsel are still entitled to move for additional discovery, which is
subject to the court’s discretion.
1. [1.23] To the Accused
Pursuant to S.Ct. Rule 412(a), the state shall, upon written motion,
disclose to defense counsel
a.
the names and addresses of persons whom it intends to call as
witnesses, together with their relevant written or recorded
statements;
b. any written or recorded statements, and the substance of any oral
statements, made by the accused or by a codefendant, with a list of
the witnesses to such statements;
c.
grand jury testimony of the accused and of witnesses whom the
state intends to call at hearing or trial;
d. expert reports and test results;
e.
documents, photographs, or tangible objects that the state intends to
use at trial or hearing, or which were obtained from or belong to the
accused; and
f.
records of prior criminal convictions of any state witnesses, which
may be used for impeachment.
In addition, the state is required to inform the defendant of any
electronic surveillance. S.Ct. Rule 412(b).
S.Ct. Rule 412(c) incorporates the constitutional requirement of Brady
v. State of Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963),
that the prosecution disclose to the defense any exculpatory or mitigating
evidence:
1 — 24
WWW.IICLE.COM
CRIMINAL LAW
§1.24
[T]he State shall disclose to defense counsel any material or
information within its possession or control which tends to
negate the guilt of the accused as to the offense charged or
which would tend to reduce his punishment therefor.
Subsections (h) and (i) of S.Ct. Rule 412 also specifically give the court
discretion to extend or restrict discovery under both S.Ct. Rules 412 and
413:
(h) Discretionary Disclosures. Upon a showing of materiality to
the preparation of the defense, and if the request is reasonable,
the court, in its discretion, may require disclosure to defense
counsel of relevant material and information not covered by this
rule.
(i) Denial of Disclosure. The court may deny disclosure
authorized by this rule and Rule 413 if it finds that there is
substantial risk to any person of physical harm, intimidation,
bribery, economic reprisals, or unnecessary annoyance or
embarrassment resulting from such disclosure which outweighs
any usefulness of the disclosure to counsel.
Special discovery provisions govern the production and use of DNA
evidence. S.Ct. Rule 417.
2. [1.24] To the State
Pursuant to S.Ct. Rule 413(a), and subject to constitutional limitations,
the defendant may be required by the court to
a.
appear in a lineup;
b. speak for identification;
c.
be fingerprinted;
d. pose for photographs not involving reenactment of a scene;
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 25
§1.24
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
e.
try on articles of clothing;
f.
permit the taking of specimens of material under fingernails;
g. permit the taking of blood, hair, and other bodily materials;
h. provide a handwriting sample; and
i.
submit to reasonable physical or medical inspection.
S.Ct. Rule 413(c) further provides that the defendant must provide the
state with medical and scientific reports and statements of experts “except
that those portions of reports containing statements made by the defendant
may be withheld if defense counsel does not intend to use any of the
material contained in the report at a hearing or trial.”
S.Ct. Rule 413(d) also requires the defendant to “inform the State of any
defenses which he intends to make at a hearing or trial” and to furnish the
state with (a) a list of witnesses whom the defendant intends to call, together
with their written and oral statements and any record of criminal
convictions; (b) any books, papers, documents, photographs, or tangible
objects that will be used as evidence or for impeachment at hearing or trial;
and (c) the details of any alibi that the defendant intends to present.
S.Ct. Rule 413(e), like S.Ct. Rule 412(h), contains a provision
authorizing additional disclosure in the court’s discretion.
Note that there is no provision in these rules for depositions,
interrogatories, requests to admit, notices to produce, or other tools
commonly employed in civil discovery. The criminal defense attorney has
learned to do without these techniques.
As a practical matter, defense counsel in a felony case usually gets a
complete copy of the police investigation file and uses that as a basis for
further defense investigation, which is conducted by subpoena duces tecum
and by shoe leather.
1 — 26
WWW.IICLE.COM
CRIMINAL LAW
§1.27
B. [1.25] Misdemeanor Discovery
S.Ct. Rules 412 and 413 do not apply in misdemeanor cases. In those
cases, the defendant is entitled to
1. a bill of particulars, on motion addressed to the court’s discretion
(725 ILCS 5/114-2);
2. a list of witnesses (725 ILCS 5/114-9);
3. production of any written or oral confession, together with a list of
the witnesses to its making (725 ILCS 5/114-10); and
4. disclosure of exculpatory or mitigating evidence (Brady v. State of
Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963)).
X. [1.26] MOTION PRACTICE
As in a civil case, pretrial motions are used to limit the issues, to resolve
questions of law, to restrict the evidence, and to eliminate potential areas of
unfairness. Article 114 of the Code of Criminal Procedure of 1963, 725
ILCS 5/114-1, et seq., addresses procedures on many common pretrial
motions. Ultimately, however, motion practice is limited only by counsel’s
imagination.
A. [1.27] Motion To Dismiss Charge
725 ILCS 5/114-1(a) provides that the defendant may move for
dismissal of the charge on any one of the following grounds:
1. The defendant was not brought to trial in compliance with the
speedy-trial statute. 725 ILCS 5/103-5.
2. The prosecution is barred by the statutes governing mandatory
joinder and multiple prosecutions or an applicable statute of limitations. 720
ILCS 5/3-3 through 5/3-8.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 27
§1.27
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
3. The defendant has received immunity from prosecution.
4. The indictment was returned by a grand jury that was improperly
selected, resulting in substantial injustice to the defendant.
5. The indictment was returned by a grand jury that acted contrary to
the statutes governing grand juries (725 ILCS 5/112-1, et seq.), resulting in
substantial injustice to the defendant.
6. The court is without jurisdiction.
7. The county is an improper place of trial.
8. The charge does not state an offense.
9. The indictment is based solely on the testimony of an incompetent
witness.
10. The defendant is misnamed in the charge and the misnomer results
in substantial injustice to the defendant.
11. The statute governing preliminary proceedings (725 ILCS 5/1093.1) has been violated.
A successful motion to dismiss does not necessarily, or even usually,
result in the termination of the case against your client. Most of these defects
are curable, and in the event of a dismissal, the prosecutor will often simply
bring a new charge. See, e.g., People v. Kent, 54 Ill.2d 161, 295 N.E.2d 710
(1972).
In addition to the grounds provided by statute (725 ILCS 5/114-1, et
seq.), a motion to dismiss can also be brought for certain constitutional
violations, including discriminatory prosecution, multiple jeopardy, or a
constitutional speedy-trial violation. The court has inherent authority to
dismiss a charge to avoid a deprivation of due process or a miscarriage of
justice. People v. Newberry, 166 Ill.2d 310, 652 N.E.2d 288, 209 Ill.Dec.
748 (1995).
1 — 28
WWW.IICLE.COM
CRIMINAL LAW
§1.29
PRACTICE POINTER

Before you file a pretrial motion to dismiss, consider whether you
might do better to wait until after trial has begun and jeopardy has
attached before moving to dismiss the charge, or even whether you
should wait until after trial and attack the charge then on a motion in
arrest of judgment. The timing of such motions can become
extremely technical, involving an interplay of waiver and double
jeopardy considerations.
B. [1.28] Motion for Bill of Particulars
725 ILCS 5/114-2(a) provides for a written motion for a bill of
particulars that “shall specify the particulars of the offense necessary to
enable the defendant to prepare his defense.” If the motion is granted, the
state may amend the bill of particulars “at any time before trial subject to
such conditions as justice may require.” 725 ILCS 5/114-2(b).
Before the enactment of modern discovery rules, a motion for a bill of
particulars was one of the few discovery tools available to the defendant in a
criminal case. In current practice, it has little value as a discovery motion. Its
significance is that the bill of particulars becomes part of the charge itself,
and the prosecution becomes bound by, and is obligated to prove, the
particulars set forth in the bill. People v. Steele, 124 Ill.App.3d 761, 464
N.E.2d 788, 79 Ill.Dec. 884 (2d Dist. 1984). A bill of particulars is most
likely to be granted when the indictment or information is adequate to
charge the offense but insufficiently specific to protect the defendant from
possible multiple jeopardy.
C. [1.29] Motion To Discharge Jury Panel
725 ILCS 5/114-3(a) provides that any objection to the manner in which
a jury panel has been selected or drawn shall be raised by a motion to
discharge the jury panel prior to the voir dire examination. “For good cause
shown the court may entertain the motion after the voir dire has begun but
such motion shall not be heard after a jury has been sworn to hear the
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 29
§1.30
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
cause.” Id. Such motions most often have been employed to raise allegations
of racial discrimination in the selection of the jury panel.
D. [1.30] Motion for Continuance
725 ILCS 5/114-4(a) provides that “[t]he defendant or the State may
move for a continuance. If the motion is made more than 30 days after
arraignment the court shall require that it be in writing and supported by
affidavit.” The statute governing motions for continuance is rather long and
detailed. Actual practice varies from county to county. Some counties are
very generous with continuances and seldom insist on a written motion.
Others go by the book.
PRACTICE POINTER

Before you request or agree to a continuance, be sure you
understand the effect that a continuance will have on your client’s
statutory and constitutional speedy-trial rights. See 725 ILCS 5/1035. See also Klopfer v. State of North Carolina, 386 U.S. 213, 18
L.Ed.2d 1, 87 S.Ct. 988 (1967); Barker v. Wingo, 407 U.S. 514, 33
L.Ed.2d 101, 92 S.Ct. 2182 (1972). See §§1.54 – 1.56 below.
E. [1.31] Motion for Substitution of Judge
Motions for substitution of judge are governed by 725 ILCS 5/114-5.
There are two different kinds of motion for substitution — a motion for
substitution as of right and a motion for substitution for cause.
1. [1.32] Motion as of Right
Under 725 ILCS 5/114-5(a),
[w]ithin 10 days after a cause involving only one defendant has
been placed on the trial call of a judge the defendant may move
the court in writing for a substitution of that judge on the
ground that such judge is so prejudiced against him that he
1 — 30
WWW.IICLE.COM
CRIMINAL LAW
§1.32
cannot receive a fair trial. Upon the filing of such a motion the
court shall proceed no further in the cause but shall transfer it
to another judge not named in the motion.
In most cases, the defendant may name only one judge in the motion, i.e.,
the judge who has been assigned to the case. However, if the charge is a
Class X felony or one for which a sentence of death or life imprisonment
may be imposed, the defendant may name two judges as prejudiced, i.e., the
sitting judge and one other judge to whom the case may not be transferred.
Id. 725 ILCS 5/114-5(b) governs motions for substitution as of right in cases
involving multiple defendants. 725 ILCS 5/114-5(c) governs motions as of
right filed by the state.
Assuming the motion complies with the statute, that is, (a) it is in
writing, (b) it is filed within ten days after the case has been placed on the
trial call of a judge, and (c) it names one judge, or two judges when
applicable, as prejudiced, the motion must be granted. 725 ILCS 5/114-5(a),
5/114-5(c). People v. Evans, 209 Ill.2d 194, 808 N.E.2d 939, 283 Ill.Dec.
651 (2004).
Motions for substitution as of right filed by the prosecution are
problematic because the substitution statute on its face gives the prosecutor,
an executive official, the practical power to entirely exclude a judge from
hearing any criminal cases. Although 725 ILCS 5/114-5(c) is framed as an
automatic substitution statute, the Illinois Supreme Court has held that it
may not be used to defeat the court’s assignment power. People ex rel.
Baricevic v. Wharton, 136 Ill.2d 423, 556 N.E.2d 253, 144 Ill.Dec. 786
(1990). Baricevic establishes the procedure for consideration of such a
motion.
PRACTICE POINTER

Two cautions on filing motions as of right: First, if you find
yourself before a judge with actual established prejudice against
your client, do not waste your one automatic motion. You may find
that the court will recuse itself voluntarily. If not, you could proceed
first on a motion to substitute for cause, using your automatic
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 31
§1.33
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
motion only if the for-cause motion fails. Just do not let your tenday deadline run. Second, look before you leap. You may not be
enthusiastic about your assigned judge, but consider who the
possible alternatives are. Some judges earn such bad reputations
that motions to substitute are filed in virtually all of their assigned
criminal cases. These judges then become the ones to hear the cases
of all defendants who move to substitute other judges.
2. [1.33] Motion for Cause
725 ILCS 5/114-5(d) provides that in addition to the motion as of right,
a defendant may move at any time for substitution of the judge for cause. A
motion to substitute for cause shall be supported by affidavit.
Upon the filing of such motion a hearing shall be conducted as
soon as possible after its filing by a judge not named in the
motion; provided, however, that the judge named in the motion
need not testify, but may submit an affidavit if the judge wishes.
If the motion is allowed, the case is reassigned. If it is denied, the case goes
back to the original judge.
F. [1.34] Motion for Change of Place of Trial
The motion for change of place of trial is still often called by its old
name of “motion for change of venue.” Motions for change of place of trial
are governed by 725 ILCS 5/114-6. A change of place of trial may be sought
by the defendant “on the ground that there exists in the county in which the
charge is pending such prejudice against him on the part of the inhabitants
that he cannot receive a fair trial in such county.” 725 ILCS 5/114-6(a).
This motion is most frequently filed in very serious cases that have been
the subject of extensive publicity. The motion is addressed to the discretion
of the court, which has to balance the burden and expense of moving the trial
against the possibility that local prejudice will make a fair trial difficult or
impossible. The state will normally oppose such a motion, arguing that voir
dire is the best method of choosing a fair jury.
1 — 32
WWW.IICLE.COM
CRIMINAL LAW
§1.35
The court has considerable discretion in ruling on a motion for change
of place of trial. It has the option of deferring the motion or denying it
without prejudice, to be reconsidered if voir dire reveals that a fair local jury
cannot be obtained. Although the state usually recommends this option, it
can be slow and wasteful. The court also has the option of granting the
motion rather than running the risk of a biased jury. The defense will be
pleased. The county board will be unhappy about the expense. The granting
of a motion for change of place of trial does not effect a substitution of the
judge and does not result in the transfer of the prosecution to the state’s
attorney of the new transfer county. Pretrial proceedings normally continue
in the original county. The case may be transferred entirely to the new
county for jury selection and trial; it may be transferred to the new county
for jury selection and then tried in the original county with the out-of-county
jury; or it may be tried entirely in the original county with the jury venire
brought in from the transfer county for voir dire and trial.
PRACTICE POINTER

Support your motion for change of place of trial with copies of all
available local newspaper articles and with transcripts of local radio
and television news broadcasts. Consider retaining a pollster who
will be able to report and testify as to the percentage of potential
jurors who are already familiar with the case and have formed an
opinion of the defendant’s guilt on the basis of pretrial publicity.
G. [1.35] Motion for Joinder of Related Prosecutions
725 ILCS 5/114-7 provides:
The court may order 2 or more charges to be tried together if
the offenses and the defendants could have been joined in a
single charge. The procedure shall be the same as if the
prosecution were under a single charge.
This motion is more likely to be filed by the prosecution than by the
defense. It is seldom in the defendant’s interest to add additional charges or
defendants to a single proceeding.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 33
§1.36
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
H. [1.36] Motion for Severance
725 ILCS 5/114-8(a) provides:
If it appears that a defendant or the State is prejudiced by a
joinder of related prosecutions or defendants in a single charge
or by joinder of separate charges or defendants for trial the
court may order separate trials, grant a severance of
defendants, or provide any other relief as justice may require.
A motion for severance should be considered whenever one defendant
has given the police a statement implicating another defendant. See Bruton v.
United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968).
I.
[1.37] Motion for List of Witnesses
725 ILCS 5/114-9 provides that the defendant may move for a list of
witnesses. You should file such a motion in a misdemeanor case. In a felony,
it is normally unnecessary because the list of witnesses will be part of the
state’s S.Ct. Rule 412 discovery obligation.
PRACTICE POINTER

In your written discovery motion, ask for a list of witnesses on the
authority of both S.Ct. Rule 412(a)(i) and 725 ILCS 5/114-9.
J. [1.38] Motion To Produce Confession
Again, the statutory motion to produce confession under 725 ILCS
5/114-10 is important in a misdemeanor case. In a felony case, it is
essentially duplicative of discovery covered by S.Ct. Rule 412.
K. [1.39] Motion To Suppress Confession
The motion to suppress confession is an extremely important motion in
any case in which your client has given a statement to the authorities. With
rare exceptions, you will want to keep your client’s statement out of
1 — 34
WWW.IICLE.COM
CRIMINAL LAW
§1.39
evidence if you can. If the statement was obtained in violation of your
client’s constitutional or statutory rights, you may be able to do so. 725
ILCS 5/114-11 sets forth the rules for motions to suppress statements by the
defendant.
Note that the statute uses the word “confession.” A confession is a
statement by the defendant that admits every element of the crime charged.
Technically, in order to obtain a conviction, the state need only establish that
a crime was committed (this is called establishing the corpus delicti) and
place the confession in evidence. If the trier of fact believes the confession,
nothing more is needed for a conviction. An “admission,” on the other hand,
is an inculpatory statement by the defendant that does not admit every
element of the crime. Although useful to the state in establishing the
defendant’s guilt, it is not sufficient. Both confessions and admissions are
subject to a motion to suppress. I have therefore preferred to refer to both as
the defendant’s “statements.”
Among the many grounds that can be advanced as the basis for a motion
to suppress are
•
failure of the police to give the warnings required by Miranda v.
Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966);
•
failure to honor the defendant’s request for an attorney during
interrogation (Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378,
101 S.Ct. 1880 (1981));
•
failure of the police to honor the defendant’s assertion of the right to
remain silent and refuse to answer questions (but see State of
Michigan v. Mosley, 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321
(1975));
•
the statement is the result of an unlawful arrest, search, or other
illegality (Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441,
83 S.Ct. 407 (1963); Lanier v. South Carolina, 474 U.S. 25, 88
L.Ed.2d 23, 106 S.Ct. 297 (1985); Kaupp v. Texas, 538 U.S. 626,
155 L.Ed.2d 814, 123 S.Ct. 1843 (2003));
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 35
§1.40
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
•
the statement was obtained in violation of the defendant’s Sixth
Amendment right to counsel (Massiah v. United States, 377 U.S.
201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964); but cf. Patterson v.
Illinois, 487 U.S. 285, 101 L.Ed.2d 261, 108 S.Ct. 2389 (1988));
•
the statement is involuntary due to physical or mental coercion
(Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774
(1964); Sims v. Georgia, 389 U.S. 404, 19 L.Ed.2d 634, 88 S.Ct.
523 (1967); People v. Wilson, 116 Ill.2d 29, 506 N.E.2d 571, 106
Ill.Dec. 771 (1987)); and
•
the defendant’s lack of mental capacity to understand and waive the
Miranda warnings or to give a voluntary statement.
If the allegations of the motion state facts that, if true, would establish
that the statement was involuntary, the burden of going forward with the
evidence at a hearing on the motion is on the state, and the state is obligated
to present every material witness to the making of the statement. 725 ILCS
5/114-11(c), 5/114-11(d).
PRACTICE POINTER

If the motion to suppress is denied, then the statement will be
admissible at trial. Whether to believe the statement, however,
remains a question for the trier of fact. The circumstances
surrounding the taking of the statement can be developed at trial
before the jury on the issue of whether the statement is to be
believed. Crane v. Kentucky, 476 U.S. 683, 90 L.Ed.2d 636, 106
S.Ct. 2142 (1986). See 725 ILCS 5/114-11(f).
L. [1.40] Motion To Suppress Illegally Seized Evidence
725 ILCS 5/114-12 governs the procedure on motions to suppress
evidence illegally seized. This important subject requires you to become
familiar with the complicated law of the Fourth Amendment to the United
States Constitution that governs arrests, searches, and seizures. The Fourth
Amendment is applicable to state proceedings through the Due Process
1 — 36
WWW.IICLE.COM
CRIMINAL LAW
§1.40
Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 6
L.Ed.2d 1081, 81 S.Ct. 1684 (1961). There is also a similar provision in the
Illinois Constitution. ILL.CONST. art. I, §6.
In a nutshell: The U.S. Constitution prohibits “unreasonable searches
and seizures.” Illinois v. McArthur, 531 U.S. 326, 148 L.Ed.2d 838, 121
S.Ct. 946, 949 (2001). Under the “exclusionary rule” enforced by the courts,
evidence obtained by the prosecution in violation of the constitutional
prohibition should not be admitted into evidence in either a federal or a state
criminal trial. Mapp, supra. This includes evidence obtained in unreasonable
searches and evidence and statements obtained as the result of unreasonable
arrests. An arrest may be made pursuant to a warrant, but an arrest warrant is
not always required when the police have probable cause. Dunaway v. State
of New York, 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248 (1979); Atwater
v. City of Lago Vista, 532 U.S. 318, 149 L.Ed.2d 549, 121 S.Ct. 1536
(2001). A search must be made pursuant to a warrant, but the warrant
requirement contains numerous exceptions. Katz v. United States, 389 U.S.
347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967); Mincey v. State of Arizona, 437
U.S. 385, 57 L.Ed.2d 290, 98 S.Ct. 2408 (1978); California v. Acevedo, 500
U.S. 565, 114 L.Ed.2d 619, 111 S.Ct. 1982 (1991). A search, with or
without a warrant, requires probable cause, but this requirement, too, is
subject to exceptions, and not every police intrusion or inspection is a
“search” for constitutional purposes. In any event, there are exceptions to the
exclusionary rule. Herring v. United States, 555 U.S. 135, 172 L.Ed.2d 496,
129 S.Ct. 695 (2009).
Always consider whether your case involves a possible constitutional
violation related to an arrest, search, and seizure. Be prepared to do
extensive homework. A good place to start would be the Hon. Kathleen M.
Pantle and Crystal H. Marchigiani, Ch. 1, Arrest, Search, and Seizure,
DEFENDING ILLINOIS CRIMINAL CASES (IICLE®, 2010, Supp. 2013).
The classic text remains Wayne R. LaFave’s monumental SEARCH AND
SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (West, 5th
ed. 2012).
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 37
§1.41
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
PRACTICE POINTER

Do not hesitate to ask for help on this one.
M.
[1.41] Other Motions
Use your imagination. What relief do you need, or want, to help you
defend your client? Some possibilities include motions
•
to preserve evidence;
•
to preserve officers’ and agents’ notes;
•
to enter and inspect premises;
•
to prohibit evidence of privileged communications;
•
to prohibit evidence of other offenses or misconduct;
•
for appointment of an investigator when the defendant is without
adequate funds;
•
for appointment of expert witnesses when the defendant is without
adequate funds; and
•
for reduction of bail (see 725 ILCS 5/110-6).
XI. [1.42] FITNESS
Trial of a defendant who is mentally unfit violates constitutional due
process of law. Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct.
836 (1966). Fitness, also referred to as “competence” in some decisions,
means that the defendant must be able both
1 — 38
WWW.IICLE.COM
CRIMINAL LAW
a.
§1.43
to comprehend the nature of the charge and the nature of the
proceedings; and
b. to cooperate with counsel in the defense of the case.
725 ILCS 5/104-10 puts the test in the following words:
A defendant is presumed to be fit to stand trial or to plead, and
be sentenced. A defendant is unfit if, because of his mental or
physical condition, he is unable to understand the nature and
purpose of the proceedings against him or to assist in his
defense.
The court, the state, and defense counsel are all under an obligation to
raise the issue of the defendant’s fitness if they are aware of a bona fide
doubt that the defendant is fit. Such a doubt may be raised at any time during
the proceedings. 725 ILCS 5/104-11. “When a bonafide doubt of the
defendant’s fitness is raised, the court shall order a determination of the
issue before proceeding further.” 725 ILCS 5/104-11(a). The procedures for
a fitness examination and hearing, and for cases involving defendants who
are found to be unfit or fit only while under medication, are the subject of
725 ILCS 5/104-10, et seq.
PRACTICE POINTER

Trying to represent an unfit defendant can be very difficult. Trying
to represent a borderline defendant whom the court has found fit can
be even more difficult.
XII. [1.43] INVESTIGATING THE CASE
Investigation of a criminal case is fundamentally no different from
investigation of a civil case. You want to know as much as you can.
Obviously, you will not have to devote as much time to investigating a
misdemeanor battery case as you would to investigating a murder charge.
Still, be the case big or small, you want to know what there is to know.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 39
§1.43
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
To begin your investigation, you have two bases:
The discovery you have received from the state. This may range from
minimal in a misdemeanor case, through a small sheaf of police reports in a
simple felony, to crates of documents and exhibits in an exceptionally
serious and complicated prosecution. This material is invaluable. It not only
tells you what the police have done and what they know; it gives you the
leads that you need to explore further.
The information you can get from your client. Your client may be
able to point you to witnesses and sources that the police know nothing
about.
A visit to the scene is always a good idea. Interviews with the witnesses
identified in the police reports can be invaluable. Do not go alone. Take a
“prover” with you, a reliable investigator or colleague who can be called as a
witness to your conversation. Without the prover, you might have to take the
stand yourself to impeach the witness, and that could disqualify you as
counsel. Furthermore, the presence of the prover will help protect you from
allegations of misconduct, such as claims that you attempted to threaten or
bribe the witness.
PRACTICE POINTER

Avoid having your client participate directly in the investigation,
particularly in witness interviews. Having your client at an
interview can lead to claims of intimidation. Moreover, anything
your client might say would not be privileged.
You have a right as an attorney for the defendant to seek to interview
any witness. The witness has a right to agree to the interview or not. You
should clearly state to the witness that all you want to know is the truth.
Explain this to the witness in the presence of the prover. If the witness
refuses to be interviewed, you have no choice but to accept the refusal.
1 — 40
WWW.IICLE.COM
CRIMINAL LAW
§1.43
PRACTICE POINTER

Of course, you can ask the witness on cross-examination at trial,
“Isn’t it true that I came to your business to talk to you? And I
identified myself as the defendant’s attorney? And I asked you to
tell me what happened? And I told you that all I wanted was the
truth? And do you remember what you said to me?”
Be particularly careful with alibi witnesses provided by your client.
Alibi testimony is easy to manufacture and even easier for an experienced
prosecutor to demolish on cross-examination. Investigate any alibi witnesses
rigorously and, if you decide to use them at trial, be sure they are well
prepared and, to the extent possible, corroborated. Even if an alibi is true, it
can easily be made to look fabricated. If the jury can be made to believe,
rightly or wrongly, that your client is presenting a perjured defense, the
prosecutor virtually has the case in the bag.
Do not overlook your right to issue subpoenas duces tecum. These
subpoenas can be used to compel the production of documents, records, and
physical evidence. Do not assume that you have received from the
prosecutor everything to which you are entitled. Put all relevant police
agencies under subpoena. Do the same for the crime lab, if one is involved.
If business records, such as telephone, bank, or credit card records, could be
helpful to your case, put them under subpoena. Remember that you must
serve a copy of any subpoena duces tecum on the prosecutor and that you
must make the evidence returnable to the court.
PRACTICE POINTER

Some judges will want to authorize any subpoena duces tecum in
advance. Some will not. Check with your judge. If the judge wants
to be notified, file a motion for leave to issue the subpoena, and ask
leave to submit a proffer of relevance to the court in camera. You
are not obligated to disclose your investigation to the prosecutor.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 41
§1.44
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
If you use an investigator, the investigator is your agent and can
participate in discussions between you and your client without voiding the
attorney-client privilege. People v. Knippenberg, 66 Ill.2d 276, 362 N.E.2d
681, 6 Ill.Dec. 46 (1977). The presence of outsiders, however, be they
friends or even family of the client, will void the privilege, and you as well
as they could be required to testify as to statements made by your client in
such circumstances.
XIII. NEGOTIATIONS WITH THE PROSECUTION
A. [1.44] In General
The door to negotiations with the prosecutor should always remain
open. The vast majority of criminal cases are resolved by agreement rather
than by trial, just as the vast majority of civil cases are settled. The
techniques of successful negotiation are the same in a criminal case as in any
other:
1. You must know the case thoroughly, both the facts and the
applicable law, as they relate both to guilt and to sentence.
2. You must know the options available for disposition of the case.
3. You should have a good idea of how seriously this type of case is
regarded in your jurisdiction.
4. You should participate in negotiations with dignity and candor.
In some counties, the state’s attorney sends a formal plea proposal letter.
More commonly, the prosecutor will simply ask you before or after a regular
court appearance, “What are you looking for?,” and you go on from there.
B. [1.45] What Is There To Negotiate?
You have five main subjects that can be negotiated to arrive at a
satisfactory agreement: (1) agreement to drop the prosecution entirely; (2)
agreement to diversion or deferred prosecution; (3) agreement to a reduction
1 — 42
WWW.IICLE.COM
CRIMINAL LAW
§1.45
of the charge; (4) agreement to a specific sentence; and (5) agreement to a
special sentence. In general, your goal is to obtain the most favorable or
lenient possible disposition for your client. The prosecutor wants to have the
certainty of a conviction or other adequate outcome while avoiding the
burden of a trial. Each of you is under some constraints. You cannot agree to
a disposition that your client will not accept, no matter how objectively
reasonable it may be. The prosecutor cannot denigrate the seriousness of the
offense by agreeing to a plea that is overly lenient.
PRACTICE POINTER

A disposition that avoids a conviction is particularly desirable, since
it leaves the client eligible to petition to have any arrest and court
records expunged. See §1.79 below.
What is a reasonable disposition? In some cases, you will be able to
persuade the prosecutor to drop the case entirely. This can happen when, for
example, your investigation has found reliable exculpatory evidence of
which the state was previously unaware. At the other extreme, when Illinois
had a death penalty there were many cases in which a plea of guilty to life
imprisonment without parole was a major victory for the defense. But unless
your case is one of those in which the prosecutor either agrees to some type
of diversion or agrees to drop the charge altogether, your negotiations will
inevitably be directed toward the terms on which your client will enter a plea
of guilty.
PRACTICE POINTER

The decision whether to plead guilty or not guilty is a personal
constitutional right of the defendant. You as the attorney can only
advise your client in the exercise of that right. The client has an
absolute right to go to trial despite your recommendation that a plea
offer be accepted. Likewise, the client has an absolute right to plead
guilty despite your advice to go to trial. Florida v. Nixon, 543 U.S.
175, 160 L.Ed.2d 565, 125 S.Ct. 551 (2004); People v. Medina, 221
Ill.2d 394, 851 N.E.2d 1220, 303 Ill.Dec. 795 (2006).
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 43
§1.46
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
C. [1.46] Alternatives to Conviction or Imprisonment
The following are some of the principal alternatives to conviction or
imprisonment that you may consider discussing with the prosecutor in the
appropriate case:
Deferred prosecution. Many counties have established programs for
certain offenses that essentially result in diversion out of the criminal
system. Typical examples are “theft school” programs for first-time
shoplifting defendants and “anger management” programs that may be
offered in certain cases involving charges of assault or battery. With the
agreement of the prosecutor these programs may be offered as part of a
“deferred prosecution” agreement. Under this kind of agreement, the
defendant is not required to enter a plea. Rather, upon the defendant’s
agreement to accept the program, the case is continued for several months to
allow time for compliance. If the defendant appears on the next court date
with the required certificate of compliance, the case is dismissed on the
state’s motion of nolle pros. The defendant is not only spared a conviction
but is not asked to plead guilty.
Supervision. If the defendant completes the supervision period without
further trouble, the charge is ultimately dismissed. 730 ILCS 5/5-1-21. The
prosecutor will often agree to, or even suggest, supervision when the
defendant has no prior convictions and the charge is not serious. Since
supervision avoids a criminal conviction, it can often be an attractive
disposition for the defendant when available. Taking a plea of guilty to
supervision, however, does involve an admission of guilt, which may have
serious collateral consequences including civil, professional, licensing, or
immigration difficulties. Federal immigration law generally views state court
supervision as a conviction for purposes of deportation, even when it is not a
conviction under state law. For incidents and conditions of supervision, see
730 ILCS 5/5-6-3.1.
Special drug probation and programs. Under certain circumstances,
defendants can avoid a criminal conviction for possession of drugs under the
provisions of 720 ILCS 550/10, formerly known as “Section 710 probation,”
for marijuana cases; or under 720 ILCS 570/410, formerly known as
“Section 410 probation,” for controlled substance cases. A defendant
1 — 44
WWW.IICLE.COM
CRIMINAL LAW
§1.46
addicted to alcohol or drugs may be able to avoid a criminal conviction by
electing to enter a treatment program. See 20 ILCS 301/40-5, et seq.
“Second chance” probation. Second chance probation is a statutory
provision under 730 ILCS 5/5-6-3.4 that, as of January 1, 2014, essentially
makes a supervision-like disposition available for certain Class 3 and Class 4
felonies. The defendant is placed on probation, and all further proceedings
are deferred. If the defendant successfully completes the probation period of
not less than 24 months, the prosecution is dismissed. Like supervision for a
misdemeanor, second chance probation for a felony is not considered a
conviction.
Conditional discharge. An alternative to imprisonment is “a sentence
or disposition of conditional and revocable release without probationary
supervision but under such conditions as may be imposed by the court.” 730
ILCS 5/5-1-4. For incidents and conditions of conditional discharge, see 730
ILCS 5/5-6-2 and 5/5-6-3. Unlike supervision, conditional discharge is a
sentence imposed pursuant to a criminal conviction and so results in a record
that cannot be expunged. See §1.79 below.
Probation. The court may impose “a sentence or disposition of
conditional and revocable release under the supervision of a probation
officer.” 730 ILCS 5/5-1-18. For incidents and conditions of probation, see
730 ILCS 5/5-6-2 and 5/5-6-3. Like conditional discharge, but unlike
supervision, probation is a sentence imposed pursuant to a criminal
conviction and likewise results in a record that cannot be expunged. See
§1.79 below.
Periodic imprisonment. The court may in some cases impose a
sentence of periodic imprisonment rather than straight imprisonment. 730
ILCS 5/5-7-1.
Impact incarceration. Also known as “boot camp,” impact
incarceration is a program operated by the Department of Corrections. If the
court’s sentence approves a convicted defendant for this program, and if the
defendant is accepted into the program by the Department, the defendant’s
sentence will be considered served upon satisfactory completion of the
program. This sentencing alternative is governed by 730 ILCS 5/5-8-1.1.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 45
§1.47
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
Cook County also operates its own impact incarceration program,
administered by the Sheriff. 730 ILCS 5/5-8-1.2.
If no alternative to imprisonment is a possibility in your case, you will
find yourself negotiating for the shortest possible prison sentence.
Sometimes it will be to the client’s advantage to take a “blind plea,” in
other words, to plead guilty without an agreement with the prosecutor. In a
totally blind plea, this means that the defendant is pleading guilty to the
crime as charged, without any reduction. It also means that the state is free
to ask for the maximum available sentence. A blind plea is an option to be
used with caution. Nevertheless, if you have a strong case for lenient
treatment and the prosecutor is not forthcoming in negotiations, your best
course sometimes will be simply to plead guilty and put all of your
mitigating evidence before the judge at a full sentencing hearing.
In your negotiations, be aware of the possible collateral consequences of
a plea or conviction. A defendant whose profession or work requires
licensing, for example, may be barred from working by a conviction, and a
noncitizen may become subject to deportation.
D. [1.47] Special Courts
Legislation allows for special courts that may be available to address the
needs of particular cases or defendants.
1. [1.48] Drug Court
The Drug Court Treatment Act, 730 ILCS 166/1, et seq., provides for
the creation of specialized drug courts “with the necessary flexibility to meet
the drug problems in the State of Illinois.” 730 ILCS 166/5. Drug court
offers “an immediate and highly structured judicial intervention process for
substance abuse treatment of eligible defendants” in both pre-adjudicatory
and post-adjudicatory programs. 730 ILCS 166/10. The agreement of both
the prosecutor and the defendant and the approval of the court are necessary
for a defendant to enter the court’s programs. Certain defendants, including
those charged with crimes of violence or with recent convictions or
incarcerations for such offenses, are not eligible. 730 ILCS 166/20.
1 — 46
WWW.IICLE.COM
CRIMINAL LAW
§1.51
Successful completion of the program may result in the dismissal of the
original charges against the defendant or successfully terminate the
defendant’s sentence. 730 ILCS 166/35.
2. [1.49] Veterans Court
The Veterans and Servicemembers Court Treatment Act, 730 ILCS
167/1, et seq., established veterans and servicemembers courts to provide
pre-adjudicatory and post-adjudicatory court programs “with an immediate
and highly structured judicial intervention process for substance abuse
treatment, mental health, or other assessed treatment needs of eligible
veteran and servicemember defendants.” 730 ILCS 167/10. The agreement
of both the prosecutor and the defendant and approval of the court are
necessary for a defendant to enter this court’s programs. Defendants charged
with crimes of violence or with recent convictions or incarcerations for such
crimes are not eligible. 730 ILCS 167/20. Successful completion of the
program may result in the dismissal of the original charges against the
defendant or successfully terminate the defendant’s sentence. 730 ILCS
167/35.
3. [1.50] Mental Health Court
Similar in structure and purpose to the drug courts and veterans and
servicemembers courts are the mental health courts created by the Mental
Health Court Treatment Act, 730 ILCS 168/1, et seq. These courts are
intended to have “the necessary flexibility to meet the problems of criminal
defendants with mental illnesses,” including co-occurring substance abuse
problems. 730 ILCS 168/5.
E. [1.51] Role of the Judge in Negotiations
Illinois judges may play an active role in plea discussions pursuant to
S.Ct. Rule 402(d). The court is not permitted to initiate plea discussions. The
court may, however, participate in such discussions at the request of the
defendant. S.Ct. Rule 402(d)(1). The former language of Rule 402, which
some judges had interpreted as allowing judicial participation only if the
parties had reached a tentative plea agreement, has been modified. S.Ct.
Rule 402(d)(2) provides that the parties, at what is commonly referred to as
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 47
§1.52
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
a “402 conference,” may disclose the agreement to the court, which may
indicate its willingness or unwillingness to concur in the agreement. The
court’s concurrence may be conditional on hearing evidence in aggravation
and mitigation. If, after hearing such evidence, the court decides to withdraw
its concurrence or conditional concurrence, the defendant must be offered an
opportunity to withdraw the plea of guilty.
In actual practice, courts show some variation in how they conduct 402
conferences. It is common practice for counsel to summarize the facts of the
case together with any anticipated aggravating and mitigating factors and for
the court then to indicate what it would consider an appropriate sentence in
the event of a guilty plea. Some judges will also indicate what they might
impose in the event of a conviction on such facts after trial. Under the prior
language of Rule 402, it was the practice in some counties that judges would
not conduct a 402 conference at all unless the defense and prosecution had
already reached an agreement for the court’s consideration. However the
conference is conducted, defense counsel explains the outcome of the
conference to the defendant, who decides whether to accept the proposed
plea agreement.
Guilty plea proceedings, including admonitions to the defendant and a
summary of any 402 conference, are made in open court on the record.
Written plea agreements are rarely used in Illinois state court cases.
F. [1.52] Reconsideration of, and Appeal from, Guilty Pleas
The defendant may appeal from a conviction imposed on a plea of guilty
or from the sentence imposed pursuant to a plea. Before such an appeal may
be taken, however, the defendant must comply with S.Ct. Rule 604(d),
which requires that a motion be filed in the trial court within 30 days of
sentencing asking leave to withdraw the plea or for reconsideration of the
sentence, depending on the relief desired. If your client is unhappy with the
plea or with the sentence imposed, you will have to follow S.Ct. Rule 604(d)
with care.
1 — 48
WWW.IICLE.COM
CRIMINAL LAW
§1.53
PRACTICE POINTER

If the defendant is successful in withdrawing the guilty plea, the
case reverts to its posture before the plea was entered. Charges that
were dismissed as part of the plea will be reinstated, and any other
benefit of the plea will be lost.
XIV. [1.53] GUILTY PLEAS
To a defense attorney, a plea of guilty may feel emotionally like a
surrender or a defeat. But good attorneys also recognize that a plea often
provides the best possible outcome for the defendant. In the right case, a plea
of guilty that results in supervision, second chance probation, or some other
special remedy may be the way to ensure that the defendant avoids both a
conviction and a criminal record.
The defendant enjoys an absolute constitutional right to a trial. The
lawyer can recommend that the defendant waive that right and enter a plea
of guilty, but the decision whether to do so lies with the client, not with the
attorney. Florida v. Nixon, 543 U.S. 175, 160 L.Ed.2d 565, 125 S.Ct. 551
(2004); People v. Medina, 221 Ill.2d 394, 851 N.E.2d 1220, 303 Ill.Dec. 795
(2006).
Guilty plea procedure is governed by S.Ct. Rule 402. Admissions of
violations of probation, conditional discharge, and supervision are governed
by Rule 402A. Rule 403 provides that a defendant under the age of 18 is not
permitted to plead guilty or waive a jury trial unless represented by counsel
in open court, except in cases punishable by a fine only.
It is not the usual practice in Illinois to require that a defendant who
enters a plea of guilty waive the right to appeal or to seek collateral review.
However, a voluntary guilty plea, by its nature, constitutes a waiver of all
non-jurisdictional error. People v. Del Vecchio, 129 Ill. 2d 265, 544 N.E.2d
312, 135 Ill.Dec. 816 (1989); People v. Jackson, 199 Ill.2d. 286, 769 N.E.2d
21, 263 Ill.Dec. 819 (2002). Under S.Ct. Rule 604(d), a defendant who
wants to appeal a conviction entered on a plea of guilty must, within 30 days
of the imposition of sentence, file a motion in the circuit court for leave to
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 49
§1.53
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
withdraw the plea, and a defendant who wishes to appeal the sentence
imposed on a plea of guilty must similarly file a motion for reconsideration
of the sentence within 30 days. These motions are a precondition for taking
an appeal, and the appeal is taken from the denial of the motion for leave to
withdraw the plea or to reconsider the sentence. If the sentence is imposed
pursuant to a negotiated plea of guilty, the defendant must file a motion to
withdraw the plea in order to challenge the sentence. S.Ct. Rule 604(d). An
issue not raised in the motion is waived for appeal.
A motion for leave to withdraw a plea of guilty is addressed to the
discretion of the circuit court. It may be granted when (a) the plea was
entered due to a misapprehension of fact or law due to misrepresentation by
the prosecutor, defense counsel, or other authority; (b) there is doubt as to
the defendant’s guilt; (c) the defendant has a defense worthy of
consideration; or (d) the ends of justice would be served by holding a trial.
People v. Davis, 145 Ill.2d 240, 582 N.E.2d 714, 164 Ill.Dec. 151 (1991).
The failure to file a Rule 604(d) motion forecloses an appeal but does not
preclude the defendant from filing a postconviction petition. People v. Culp,
127 Ill.App.3d 916, 468 N.E.2d 1328, 82 Ill.Dec. 548 (4th Dist. 1984). For
discussion of postconviction petitions and the Post-Conviction Hearing Act,
see DEFENDING ILLINOIS CRIMINAL CASES, Ch. 17 (IICLE® 2010,
Supp. 2013).
PRACTICE POINTER

1 — 50
A motion for leave to withdraw a guilty plea is a dangerous remedy
and should be employed with caution. If the motion is successful,
the case is back at square one. Any charges dismissed pursuant to
the plea agreement are reinstated. The defendant cannot, in general,
expect any further useful negotiation with the state, and the case
will go to trial on the original charges with maximum legal penalties
available.
WWW.IICLE.COM
CRIMINAL LAW
§1.56
XV. [1.54] SPEEDY TRIAL
The defendant’s right to a speedy trial is guaranteed by Amendments VI
and XIV to the United States Constitution, by Article I, §8, of the Illinois
Constitution, and by statute, 725 ILCS 5/103-5.
A. [1.55] Statutory Speedy-Trial Rights
The basic rule in Illinois is that a defendant in custody is entitled to trial
within 120 days from the time that custody begins (725 ILCS 5/103-5(a)),
and a defendant on bail or recognizance is entitled to trial within 160 days of
filing a written trial demand (725 ILCS 5/103-5(b)). A defendant who is not
brought to trial within the statutory period “shall be discharged from custody
or released from the obligations of his bail or recognizance.” 725 ILCS
5/103-5(d). Delay occasioned by the defendant tolls the running of the
speedy-trial term. 725 ILCS 5/103-5(f). Similarly, delay for fitness
proceedings, interlocutory appeal, or certain other reasons including the
defendant’s agreement toll the running of the term. See People v. Campa,
217 Ill.2d 243, 840 N.E.2d 1157, 298 Ill.Dec. 722 (2005).
B. [1.56] Constitutional Speedy-Trial Rights
The constitutional right to a speedy trial is much less precise than the
statutory right and involves a balancing of factors including (1) the length of
the delay, (2) the reasons for the delay, (3) the defendant’s assertion of the
right, and (4) any prejudice to the defendant. See Klopfer v. State of North
Carolina, 386 U.S. 213, 18 L.Ed.2d 1, 87 S.Ct. 988 (1967); Barker v.
Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972); People v.
Crane, 195 Ill.2d 42, 743 N.E.2d 555, 252 Ill.Dec. 687 (2001); People v.
Kaczmarek, 207 Ill.2d 288, 798 N.E.2d 713, 278 Ill.Dec. 329 (2003).
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 51
§1.57
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
XVI. [1.57] THE TRIAL IN A CRIMINAL CASE
PRACTICE POINTER

The key to effective trial work is thorough preparation. When you
come into court, you must know the facts and the law. Your trial
material should be organized so you can find what you need quickly
and without an anxious search. There are many good ways to
organize your trial files. Find a method that works for you.
A. [1.58] In General
The trial in a criminal case is fundamentally the same as that in a civil
case. In Illinois, the choice of whether to take a jury trial or a bench trial lies
entirely with the defendant and the prosecution is not entitled to demand a
jury. Like the decision whether to plead guilty or not guilty, the decision
between a jury or a bench trial is personal to the defendant. Counsel can, and
should, advise and recommend, but the defendant must make the decision.
People v. Medina, 221 Ill.2d 394, 851 N.E.2d 1220, 303 Ill.Dec. 795 (2006).
In general, a bench trial may be a better choice when the defense tends
toward the technical or when a jury would find the charged crime
particularly offensive. A jury may be preferable when the facts, or the
defendant, are sympathetic. The verdict of a jury to convict must be
unanimous.
PRACTICE POINTER

1 — 52
It is generally easier to appeal successfully from the verdict of a
jury than from the finding of a judge. Improperly admitted evidence
may be grounds for reversal of a jury conviction, but a trial judge is
rebuttably presumed to have disregarded improper evidence. People
v. Naylor, 229 Ill.2d 584, 893 N.E.2d 653, 323 Ill.Dec. 381 (2008).
At a jury trial, unlike a bench trial, there is always potential for
reversible error in the jury instructions.
WWW.IICLE.COM
CRIMINAL LAW
§1.61
B. [1.59] Stipulated Bench Trials
In some cases, counsel agree to a stipulated bench trial. This is most
often done in drug or weapons cases in which the result of the case depends
entirely on the outcome of a pretrial motion to suppress illegally seized
evidence. Counsel may stipulate that the evidence heard on the motion to
suppress would be the same as the evidence at trial. This procedure allows
the defendant to preserve for review a claim that the court ruled improperly
on the motion to suppress, while avoiding the burden of a trial with a
foregone conclusion. A plea of guilty following an unsuccessful motion to
suppress would forfeit the Fourth Amendment claim on appeal. A stipulation
that the defendant is guilty, or that the evidence is sufficient to establish guilt
beyond a reasonable doubt, is not a stipulated bench trial but a disguised
plea of guilty without admonitions, and is improper. People v. Horton, 143
Ill.2d 11, 570 N.E.2d 320, 155 Ill.Dec. 807 (1991).
C. [1.60] Motions in Limine
Counsel often ask the court to make rulings on evidentiary questions
prior to the actual presentation of the case to the jury. A request for such a
ruling is called a motion in limine. Such motions would seem at first blush
to be wonderfully useful, offering an opportunity to resolve disputed
questions of evidence prior to the opening statement, so that counsel will
know before they address the jury what evidence will be permitted and what
will not. In actuality, these motions are less helpful than they might appear,
for judges are often reluctant to make advisory rulings out of context and
reserve all but the clearest decisions until they have heard the actual
testimony. See United States v. Burkhead, 646 F.2d 1283, 1286 (8th Cir.
1981).
D. [1.61] Order of Trial
The trial begins with opening statements. The prosecution goes first. At
a very simple bench trial, the prosecutor may waive the opening statement.
Some judges permit the defense to reserve its opening statement until after
the state has rested its case. Defense attorneys seldom ask to reserve the
opening statement in criminal cases.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 53
§1.61
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
PRACTICE POINTER

It is generally wise to make a motion to exclude witnesses prior to
opening statements. The prosecutor will usually join in this motion.
In complicated cases, the state may ask that an officer thoroughly
familiar with the investigation be allowed to sit at the prosecution
table as the “case agent.” Such a request is addressed to the judge’s
discretion.
After opening statements, the prosecution presents its case-in-chief. The
state does not enjoy the civil plaintiff’s option to call the defendant as an
adverse witness. The prosecutor has enormous discretion in the manner and
order of presenting the state’s case, and a skillful prosecutor will tailor the
presentation to the nature of the charge and the evidence. All witnesses are
subject to cross-examination.
If the state’s evidence-in-chief, taken in the light most favorable to the
prosecution, fails to establish the defendant’s guilt beyond a reasonable
doubt, the court is required to grant a motion by the defendant for a directed
verdict of not guilty or, in a bench trial, for a finding of not guilty at the
close of the state’s case. Such a disposition, unlike a pretrial dismissal,
constitutes an acquittal on the merits, and re-prosecution is foreclosed by the
constitutional prohibition against multiple jeopardy.
Assuming that the state’s case survives a motion at the close of its casein-chief, the defendant has the opportunity to present evidence. Whether to
present any defense evidence or witnesses is a case-by-case tactical decision
committed to the judgment of the attorney. Defense counsel, not the
defendant, has the final call on whether, and how, to present a defense.
There is one important exception to this rule. The defendant has an absolute
right to testify and an absolute right not to testify. Like the decision whether
to plead guilty or not guilty and the decision whether to take a jury, the
decision whether to testify is personal to the defendant, and counsel can do
no more than advise. Florida v. Nixon, 543 U.S. 175, 160 L.Ed.2d 565, 125
S.Ct. 551 (2004); People v. Medina, 221 Ill.2d 394, 851 N.E.2d 1220, 303
Ill.Dec. 795 (2006).
1 — 54
WWW.IICLE.COM
CRIMINAL LAW
§1.62
PRACTICE POINTER

Defendants often do themselves great harm by testifying and not
infrequently manage to snatch defeat from the jaws of victory. If
there is any chance that your client will want to testify, whether it
be in accord with or contrary to your recommendation, be thorough
and careful in your preparations. Practice runs, more than just one,
are a good idea. The jury will pay extremely close attention to the
defendant’s testimony.
The defendant, unlike other witnesses, has a right to sit through the
entire trial and hear all of the other testimony and should therefore normally
be the last defense witness to testify. See Brooks v. State of Tennessee, 406
U.S. 605, 32 L.Ed.2d 358, 92 S.Ct. 1891 (1972).
E. [1.62] Defenses
The defendant has an absolute right to remain silent, offer no evidence,
and stand on the plea of not guilty, which puts the state to its burden of
proof. Frequently, the best defense is to do just that, and many a defendant
has been acquitted because the jury was not convinced beyond a reasonable
doubt. The defense also may introduce evidence challenging the facts as
alleged by the prosecution. There are, however, other defenses that the
defendant may choose to advance in the appropriate case. These include
•
compulsion (720 ILCS 5/7-11);
•
necessity (720 ILCS 5/7-13);
•
entrapment (720 ILCS 5/7-12);
•
justifiable use of force, i.e., self-defense (720 ILCS 5/7-1, et seq.);
•
involuntary intoxication (720 ILCS 5/6-3);
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 55
§1.63
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
•
insanity (720 ILCS 5/6-2) (In addition to the usual verdicts of
“guilty” and “not guilty,” a court faced with an insanity defense
may find the defendant “not guilty by reason of insanity” or “guilty
but mentally ill.” For the consequences of a verdict of “not guilty by
reason of insanity,” see People v. Thiem, 82 Ill.App.3d 956, 403
N.E.2d 647, 38 Ill.Dec. 416 (1st Dist. 1980). A defendant found
guilty but mentally ill under 720 ILCS 5/6-2(c) is not absolved of
criminal responsibility and may be sentenced for the offense of
conviction.); and
•
alibi (A defendant who intends to offer an alibi defense must make
disclosure to the state pursuant to S.Ct. Rule 413. See §1.24 above.).
F. [1.63] Jury Instructions
Illinois requires counsel in criminal cases to use the Illinois Pattern Jury
Instructions —Criminal (I.P.I. — Criminal) unless no satisfactory I.P.I. —
Criminal instruction correctly states the law on a relevant issue. Instruction
practice is similar to that in civil cases.
XVII. [1.64] PRESERVING YOUR RECORD
You must try every criminal case with an eye to an appeal. It is all very
well to have confidence in your case and in your ability to persuade a jury,
but failure to understand and follow the rules for making a record for
appellate review is, to put it bluntly, incompetent lawyering.
In order to preserve error for appeal, you must in every instance take
both of two steps: (a) you must bring your issue to the judge’s attention via a
timely motion or objection; and (b) you must present your allegation of error
to the judge again after trial in a written posttrial motion.
A. Timely Motion or Objection
1. [1.65] Motion
For some issues of law, you bring your issue to the judge’s attention by
filing the appropriate pretrial motion. It is not enough to put the motion in
1 — 56
WWW.IICLE.COM
CRIMINAL LAW
§1.67
the file and get it stamped by the clerk. You must get your motion heard by
the judge, and you must get a ruling.
2. [1.66] Objection
The usual method for bringing evidentiary error and other trial error to
the attention of the judge is by making a timely and adequate objection.
“Timely” usually means immediately. “Adequate” means that the objection
must be clear and precise and must state every ground of error that you want
to preserve. A pretrial ruling in limine makes a trial objection on the same
issue unnecessary. People v. Denson, 2014 IL 116231, 21 N.E.3d 398, 386
Ill.Dec. 635. Allegations of improper closing argument by the prosecutor are
generally deemed waived unless an objection is made.
An objection that states specific grounds waives all grounds not stated.
An objection that states no grounds is deemed an objection on the grounds of
relevancy alone. When an objection is made and sustained, the error
objected to normally is deemed cured. If you want further relief, ask for a
mistrial. Raise the denial of the motion for mistrial in your posttrial motion.
It is not necessary in Illinois to take an exception to an adverse
evidentiary ruling. People v. Kline, 90 Ill.App.3d 1008, 414 N.E.2d 141, 46
Ill.Dec. 419 (1st Dist. 1980).
3. [1.67] Offer of Proof
If you want to do something and the trial judge will not permit it, you
must be able to show the appellate court what it was that you were trying to
accomplish. Otherwise, your objection will be inadequate. This showing is
called an offer of proof.
For example, if the judge excludes testimony that you want to elicit
from a witness, you must make an offer of proof indicating what questions
you wanted to ask and what answers you expected to elicit, either by calling
the witness outside the presence of the jury or, more simply, by summarizing
the anticipated testimony yourself.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 57
§1.68
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
Similarly, if the judge sustains an objection to your cross-examination of
a state’s witness, you must make an offer of proof to demonstrate on the
record what questions you would have asked had you not been prevented
and what answers you expected to receive.
PRACTICE POINTER

A careful trial judge may ask you for an offer of proof before ruling
on an objection. If this does not happen, you must be sure to put
your offer on the record. The judge may tell you to wait until the
next recess. That is fine. Just do not forget.
4. [1.68] Error in Instructions
If you want to preserve error relating to failure to give a jury instruction,
you must tender the desired instruction.
B. [1.69] Posttrial Motion
While it is essential to make your timely pretrial motion, motion in
limine, or trial objection, it is not enough. You must also present your
allegation of error to the judge again after trial in a written posttrial motion.
This motion gives the judge an opportunity to reconsider your argument
without the time pressure of a trial in progress and at a point at which it is
possible to see the effect of the initial ruling on the entire course of the
proceedings.
Like the objection at trial, the allegation of error in a posttrial motion
must be clear, precise, and complete.
PRACTICE POINTER

1 — 58
An objection without a posttrial motion is not adequate. A posttrial
motion without an objection is not adequate. Illinois law requires
both.
WWW.IICLE.COM
CRIMINAL LAW
§1.71
A statement in a posttrial motion that the “defendant reasserts and
realleges all pretrial motions and all objections made at trial” is not likely to
satisfy the law. A statement that “this motion is prepared without benefit of a
transcript, and the defendant alleges and incorporates all errors that may
appear of record” is worthless.
Error that is not properly preserved on the record is deemed waived for
purposes of appeal. Reviewing courts sometimes apply “plain error” or other
grounds to address error that has been inadequately preserved, but these
instances are exceptions. Do not rely on them. Learn how to preserve a
record and do it in every case.
The posttrial motion is normally due 30 days after the verdict or finding
of guilty. The court rules on the motion before it entertains sentencing
proceedings. Typically, argument on the motion and sentencing are set at the
same time. If the posttrial motion is denied, sentencing proceedings begin
immediately.
XVIII. [1.70] SENTENCING
If your client is convicted, whether after trial or after a plea of guilty,
there will be a sentencing. A judge in Illinois enjoys considerable sentencing
discretion, and the role of defense counsel in sentencing is therefore
extremely important. Your efforts can make the difference between a
sentence of probation and a substantial term in prison.
A. [1.71] Presentence Investigation Report
After a verdict or finding of guilty, the court will order the probation
department to prepare a presentence investigation (PSI) report. This report
provides the court with information on the defendant’s background,
childhood, physical and mental health, personal life, and criminal record.
The quality of these reports varies widely. Some probation officers submit
extensive, detailed, and highly professional reports. Too many PSI reports,
however, are superficial and virtually useless to the court.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 59
§1.72
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
PRACTICE POINTER

If there is information you want the judge to know in determining
the sentence, develop it and bring it out yourself. Do not depend on
the PSI report.
B. [1.72] Sentencing Options
Most, or even all, of the sentencing options discussed in §§1.46 – 1.50
above may still be available after conviction at trial. The court, of course,
may be less inclined to sentence at the most lenient end of the scale than it
would have been following a guilty plea.
C. [1.73] Victim-Impact Evidence
Illinois law provides for admission at sentencing of victim-impact
evidence. This sort of evidence has an uneven legal history and is subject to
abuse. Be on your guard. In Booth v. Maryland, 482 U.S. 496, 96 L.Ed.2d
440, 107 S.Ct. 2529 (1987), the United States Supreme Court held that
victim-impact testimony was inadmissible as a matter of constitutional due
process because it addresses an issue, i.e., the character of the victim, that is
a matter of pure chance entirely unconnected with the defendant and is
therefore inherently irrelevant to the proper determination of punishment.
Four years later, in Payne v. Tennessee, 501 U.S. 808, 115 L.Ed.2d 720, 111
S.Ct. 2597 (1991), a differently constituted Supreme Court overruled Booth
and held that states could, subject to certain limitations, reasonably conclude
that such evidence was relevant and admissible. Illinois has adopted a statute
authorizing victim-impact evidence, 725 ILCS 120/6, but the extent and
scope of such evidence is subject to considerations of relevance, and its
admission is within the discretion of the court. In actual practice, it is
common for the victim or family members to submit a victim-impact
statement, drafted with the assistance of the prosecution. These statements
show such similarity from case to case as to leave no doubt that they are
either entirely written or at least substantially coached by the state’s
attorney’s office. You should review any such statements carefully, and, if
you find them improper, ask to have them excluded or redacted.
1 — 60
WWW.IICLE.COM
CRIMINAL LAW
§1.75
D. [1.74] Hearing
A sentencing hearing, like a preliminary hearing, is like an abbreviated
trial on a limited issue. The rules of evidence are greatly relaxed, and any
reliable evidence that would assist the court in determining the appropriate
sentence is admissible. The prosecution goes first with evidence of
aggravation. This often includes prior convictions and also prior criminal
conduct that has not resulted in conviction. Details of a defendant’s prior
unsavory conduct may be admitted if the court finds them relevant and
probative. Similarly, however, when it is your turn to present evidence in
mitigation, you have considerable scope and are free to use your
imagination.
730 ILCS 5/5-5-3.1 lists statutory factors in mitigation that “shall be
accorded weight in favor of withholding or minimizing a sentence of
imprisonment.” You are not limited to these factors in mitigation, but it is
always wise to show the existence of as many of the statutory mitigating
factors as you can. 730 ILCS 5/5-5-3.2(a) lists statutory factors in
aggravation that the state will seek to establish when applicable. Anticipate
any aggravating factors that might be alleged in your case and do your best
to disprove or minimize them.
PRACTICE POINTER

Sentencing judges tend to give considerable weight to the statutory
factors, whether mitigating or aggravating.
E. [1.75] Enhancements
The normal statutory sentencing ranges are set out in §1.19 above. But
under some circumstances, the court can impose sentences more severe than
the statutory maximum.
730 ILCS 5/5-8-2 authorizes the imposition of extended-term sentences
for every class of felony upon a showing by the prosecution of statutory
aggravating factors set forth in 730 ILCS 5/5-5-3.2(b) and 5/5-8-1(a)(1)(b).
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 61
§1.75
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
This allows the court to impose roughly up to twice the normal maximum
sentence. Authorized extended-term sentences are as follows (730 ILCS
5/5-4.5-20, et seq.):
First-degree murder:
Class X:
Class 1:
Class 2:
Class 3:
Class 4:
60 – 100 years imprisonment
30 – 60 years
15 – 30 years
7 – 14 years
5 – 10 years
3 – 6 years
Additional consecutive sentences apply for certain convictions involving
firearms. A term of fifteen years is added for a crime committed while
“armed with a firearm.” Twenty years is added to the sentence if the
defendant personally discharged a firearm during the commission of the
offense. If the defendant’s personal discharge of a firearm caused great
bodily harm, permanent disability, permanent disfigurement, or death, the
additional term is twenty-five years to life. These firearm enhancements
apply to
1. attempted first degree murder (720 ILCS 5/8-4(c)(1)(A), et seq.);
2. intentional homicide of an unborn child (720 ILCS 5/9-1.2(d)(2), et
seq.);
3. aggravated kidnapping (720 ILCS 5/10-2(a)(5), et seq.);
4. home invasion (720 ILCS 5/19-6(a)(3), et seq.);
5. aggravated criminal sexual assault (720 ILCS 5/11-1.3(a)(8), et
seq.; but see People v. Hauschild, 226 Ill. 2d 63, 871 N.E.2d 1
(2007), People v. Taylor, 2015 IL 117267, 25 N.E.3d 627, 388
Ill.Dec. 935, and People v. Blair, 2013 IL 114122, 986 N.E.2d 75,
369 Ill.Dec. 126, for constitutionality issues);
6. predatory criminal sexual assault of a child (720 ILCS 5/111.40(a)(2), et seq.);
1 — 62
WWW.IICLE.COM
CRIMINAL LAW
§1.78
7. armed robbery (720 ILCS 5/18-2(a)(2), et seq.; but see Hauschild,
supra, Taylor, supra, and Blair, supra, for constitutionality issues);
8. aggravated vehicular hijacking (720 ILCS 5/18-4(a)(4), et seq.; but
see Hauschild, supra, Taylor, supra, and Blair, supra, for
constitutionality issues); and
9. first-degree murder (730 ILCS 5/5-8-1(a)(1)(d), et seq.).
In addition, special sentencing provisions enhance aggravated battery
convictions involving firearms. 720 ILCS 5/12-3.05(g).
A defendant who is determined to be a habitual criminal under 730
ILCS 5/5-4.5-95 is subject to a natural life sentence.
F. [1.76] Consecutive and Concurrent Sentences
Under certain circumstances, the court is required to impose consecutive
sentences, i.e., to make the sentence consecutive to a sentence imposed in
another case or to that imposed on another count in the same case. In most
cases, however, the court has discretion whether to make sentences
consecutive or concurrent. 730 ILCS 5/5-8-4(c), et seq.
G. [1.77] Preserving the Record at Sentencing
Just as you must object and file a posttrial motion in order to preserve
error at trial for appellate review, so you must object and file a motion to
reconsider sentence in order to preserve sentencing error for appellate
review. People v. Reed, 177 Ill.2d 389, 686 N.E.2d 584, 226 Ill.Dec. 801
(1997).
XIX. [1.78] APPEAL
Litigation of a criminal appeal is outside the scope of this guide.
Appeals in criminal cases are governed by S.Ct. Rules 601 – 615 and by the
considerations that apply generally to appellate practice. In addition, S.Ct.
Rule 651 applies to appeals in postconviction proceedings and S.Ct. Rules
660 and 661 to appeals in juvenile proceedings.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 63
§1.79
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
It is the duty of trial counsel to file a timely notice of appeal when the
defendant desires to appeal from a conviction or sentence. Roe v. FloresOrtega, 528 U.S. 470, 145 L.Ed.2d 985, 120 S.Ct. 1029 (2000); Rodriquez v.
United States, 395 U.S. 327, 23 L.Ed.2d 340, 89 S.Ct. 1715 (1969); Peguero
v. United States, 526 U.S. 23, 143 L.Ed2d 18, 119 S.Ct. 961 (1999); People
v. Torres, 228 Ill. 2d 382, 888 N.E.2d 91, 320 Ill.Dec. 874 (2008). The
notice of appeal is a simple document. The form is prescribed by S.Ct. Rule
606(d). The notice of appeal must be filed in the trial court, that is, with the
clerk of the circuit court (not with the appellate court) within 30 days of the
order or judgment appealed from. In a criminal case, the date of judgment is
the date of oral imposition of a sentence by the trial court. A notice of appeal
filed before that date is premature and invalid.
PRACTICE POINTER

Filing a timely notice of appeal in the trial court is jurisdictional.
Failing to file, or filing late, can result in your client’s right of
appeal being permanently forfeited.
So if your client is found guilty, you must
a.
file a timely and adequate posttrial motion (see §1.69 above);
b. represent your client in sentencing proceedings and, when
appropriate, file a motion to reconsider the sentence (see §1.77
above); and
c.
file a notice of appeal in the circuit court within 30 days.
XX. [1.79] EXPUNGEMENT AND SEALING
For many defendants, the most harmful result of an encounter with the
court system is a criminal record. Such a record can have a devastating
effect on prospects for employment, housing, education, credit, professional
licensing, military service, and many other aspects of life. One of the
1 — 64
WWW.IICLE.COM
CRIMINAL LAW
§1.79
greatest services an attorney can provide is to help the client to avoid such a
record or to assist in having a record, once acquired, expunged or sealed.
The Criminal Identification Act, 20 ILCS 2630/0.01, et seq., provides
for the expungement or sealing of some state arrest, supervision, and
conviction records. 20 ILCS 2630/5.2, et seq. The statute is, unfortunately,
long, complex, and difficult to understand. Expungement and sealing are the
subject of an entire IICLE® handbook, ILLINOIS CRIMINAL RECORDS:
EXPUNGEMENT AND OTHER RELIEF (2013). Worksheets, forms, and
instructions are available online from the Office of the State Appellate
Defender (OSAD) at www.illinois.gov/osad, and OSAD expungement staff
attorneys are available to provide assistance. Important amendments to the
statute became effective on January 1, 2014, somewhat liberalizing its
provisions, but making it still more complicated.
Expungement is available, absent extraordinary executive action, only to
those who have never been convicted of any offense, felony, misdemeanor,
or municipal ordinance violation. It is available to delete the arrest records,
and to impound the court records, of those who have been arrested but
released without charging, who have been charged but acquitted, or who
have successfully completed diversion programs, supervision, or certain
types of qualified probation. Sealing, which restricts access to court and
police records, is available to defendants who have been convicted of most
misdemeanors and some felonies. Petitions for expungement or sealing are
addressed to the discretion of the court. Statutory eligibility neither requires
nor assures that relief will be granted.
“Expunge” means to physically destroy the records or to return them to
the petitioner and to obliterate the petitioner’s name from any official index
or public record. Physical records of the circuit court ordered expunged are
not physically destroyed but are impounded. 20 ILCS 2630/5.2(a)(1)(E).
“Seal” means to physically and electronically maintain the records, but
to make them unavailable without court order subject to certain exceptions.
The name of the petitioner is obliterated from the index of the circuit court,
“but any index issued by the circuit clerk before the entry of the order to seal
shall not be affected.” 20 ILCS 2630/5.2(a)(1)(K).
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 65
§1.79
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
20 ILCS 2630/5.2(a)(3) lists records that cannot be expunged or sealed,
including arrests or charges resulting in supervision or conviction for sexual
offenses involving minors, certain DUI and related charges, numerous sex
offenses, domestic battery offenses and violations of domestic orders of
protection, and Class A misdemeanors involving cruelty to animals.
The expungement or sealing process is initiated by filing in the circuit
court, in the county where the defendant was arrested or prosecuted, a
petition to expunge or to seal, on a simple form provided by the circuit clerk.
Service is made by the clerk on the state’s attorney, on the Department of
State Police, and on the chief legal officer of the arresting authority,
typically, the corporation counsel of the municipality of the arresting police
department. Respondents have 60 days in which to file objections. Whether
a hearing is held is a matter of local practice. In some courts, a hearing is set
in every case. In others, the petition is typically granted without hearing
unless an objection is filed. If the court enters an expungement order, the
agencies have 60 days in which to comply. The details of practice vary from
county to county.
There are two exceptions to the rule that no conviction can be expunged.
The circuit court has the authority to order a conviction expunged if the
Governor has granted the petitioner a pardon that includes an order
authorizing expungement. 20 ILCS 2630/5.2(e). And, under legislation
effective January 1, 2014, the court may order an expungement for a
petitioner who has been granted a certificate of eligibility for expungement
by the Prisoner Review Board. 20 ILCS 2630/5.2(e-6). The Prisoner Review
Board can grant such a certificate under certain circumstances, and subject
to certain restrictions, to an applicant convicted of a Class 3 or Class 4
felony who has served at least one tour of duty in the armed services of the
United States or the National Guard and was either honorably discharged or
is currently enlisted. 730 ILCS 5/3-3-2(a)(11). In addition to these
provisions for executive action to permit records to be expunged, the
Prisoner Review Board can grant a certificate of eligibility for sealing
subject to restrictions, including a list of ineligible offenses and a five-year
waiting period. 730 ILCS 5/3-3-2(a)(10).
Fillable pdf forms for a petition to expunge, a petition to seal, a notice of
filing, an order to expunge records, an order to seal records, an order
1 — 66
WWW.IICLE.COM
CRIMINAL LAW
§1.80
denying petition, and a lost record affidavit are available on the website of
the Clerk of the Circuit Court of Cook County, www.cookcountyclerk
ofcourt.org/?section=FormsPage (case sensitive).
Expungement and sealing forms for other counties may be available in
pdf or hard copy from the clerk of the circuit court.
Form packets for both Cook County and downstate are available from
the Office of the State Appellate Defender, www.illinois.gov/osad/pages/
default.aspx.
XXI. [1.80] CRIMINAL CASES IN FEDERAL COURT
In §1.3 above, I expressed some trepidation about the wisdom of an
inexperienced attorney undertaking the defense of a criminal case. My
feeling about criminal practice in the federal courts goes beyond trepidation.
The defense of a federal criminal prosecution is simply no job for a novice. I
say this for the following reasons:
a. Federal criminal practice is dominated by the overriding presence of
the Federal Sentencing Guidelines, a volume of sentencing rules and
commentary authorized by Congress and drafted by the United States
Sentencing Commission that rivals the Internal Revenue Code in its
complexity and incoherence. Understanding of the Guidelines is essential for
every decision defense counsel makes from the beginning of the case
through its conclusion. It takes considerable experience to be at home with
this material.
b. There are few minor or easy cases in the federal criminal system.
c. The defendant in a federal case is under enormous pressure to
cooperate with the government. It takes experience and judgment to
represent a client who is invited, or pushed, to cooperate.
d. Federal prosecutors have a powerful tool in the “proffer,” whereby
the defendant is offered an opportunity to provide information to the
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 67
§1.81
ELEMENTS OF ILLINOIS LAW: CRIMINAL LAW
prosecutor under a conditional promise of use immunity. The proffer may be
extremely helpful to the defendant, but it may also turn out to be a dangerous
trap, and the immunity may be more illusory than real.
e. Federal cases frequently involve massive amounts of discovery,
which is sometimes not tendered until the trial is already under way.
f. Federal judges are not reluctant to impose sanctions on attorneys
whom they consider, justly or not, to be dilatory, ill prepared, or inadequate.
I do not want to discourage you from learning to defend federal criminal
cases. Federal criminal practice can be stimulating, exciting, and highly
gratifying. The cases are often difficult, and the prosecution is
knowledgeable, skillful, and well prepared. If you like the practice of law at
a demanding, challenging level, this is it. But get yourself ready. Volunteer
as a second chair attorney in the federal defender panel program in your
district and work a number of cases as assistant to experienced counsel.
XXII. [1.81] SOURCES
For a far more detailed text on Illinois criminal practice, consult
IICLE®’s two-volume handbook DEFENDING ILLINOIS CRIMINAL
CASES (2010, Supp. 2013). Other useful texts on Illinois criminal practice
include the IICLE® handbook ILLINOIS CRIMINAL RECORDS:
EXPUNGEMENT AND OTHER RELIEF (2013); John F. Decker,
ILLINOIS CRIMINAL LAW: A SURVEY OF CRIMES AND DEFENSES
(Lexis Law Publications, 5th ed. 2012); Robert S. Hunter, TRIAL
HANDBOOK FOR ILLINOIS LAWYERS, CRIMINAL (Lawyers
Cooperative Publishing, 8th ed. 2002); Ralph Ruebner, ILLINOIS
CRIMINAL TRIAL EVIDENCE (Law Bulletin Publishing Co., 4th ed.
2001); Richard S. Kling, ILLINOIS CRIMINAL DEFENSE MOTIONS
(Lexis Law Publications, 1995); and Michael H. Graham, CLEARY AND
GRAHAM’S HANDBOOK OF ILLINOIS EVIDENCE (Aspen Publishers,
10th ed. 2010). For a digest of Illinois and constitutional decisions, see
David P. Bergschneider et al., ILLINOIS HANDBOOK OF CRIMINAL
LAW DECISIONS (Illinois State Bar Association and Office of the State
1 — 68
WWW.IICLE.COM
CRIMINAL LAW
§1.81
Appellate Defender, 2009). For criminal cases in the federal courts, consult
the IICLE® handbook FEDERAL CRIMINAL PRACTICE (2011, Supp.
2014).
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1 — 69