In an artful and learned opinion by Justice Kilbride the Illlinois Supreme Court ruled in two consolidated cases on 1/23/09 that a trial court’s “failure to rule on a motion in limine on the admissibility of prior convictions when it has sufficient information to make a ruling constitutes an abuse of discretion. When applying the Montgomery rule before trial a trial judge will certainly be able to determine whether the prior crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statements. Likewise, a trial judge can readily ascertain whether less than 10 years has (sic) elapsed since the date of conviction of the prior crime or release from confinement. Moreover, in all but the most complicated cases a judge will have enough information before trial to weigh the probative value of admitting the prior conviction against the danger of unfair prejudice to the defendant.”
The ruling was contained in the consolidated cases of P v. Patrick and People v Phillips, Docket Nos. 104077, 104445 cons. Click this to see the case.
This important ruling should change the practice of many Cook County courts.
January 25th, 2009
I think its fair to say that this case actually requires the trial Court to rule before trial, not just after the State’s case as some judges do. The decision makes it clear that a ruling before trial is necessary, in part, because the defense’s opening statement may well be influenced by the ruling.
Bruce
January 27th, 2009
Yes Bruce, the case does say that altho the court said there are exceptions but the judge must make a clear record for the reviewing court as to those reasons. Judges Lacy and (usually but not always) Fox for example won’t rule until after the defendant testifies. I’m not sure about the others. Some rule before trial, others before the defendant’s case. The only reason to hold off is if the defendant testifies well, to help the State by allowing in convictions and if he shoots himself in the foot (who hasn’t been there) to be magnanimous and keep them out.
Exekiel Phillips was a Lacy case and he continued even after the Appellate court ruling to refuse until after the defendant testifies.
January 29th, 2009
But please also note Judge Burke’s dissent re: Phillips. I agree with her that the
majority opinion in Phillips doesn’t make sense given their reasoning in Patrick.
Basically, the majority in Phillips is saying that unless our guy / gal testifies, we
waive the issue for appeal. So now, client has to hit, even if the judge refuses to
rule on our motions in limine.
January 29th, 2009
I agree with Steph except the judge is ensuring a new trial. It is plain error by the S.Ct. decision. At the very least we get a new trial.
January 29th, 2009
My reading of the case is that judges really don’t have a good reason anymore to delay a ruling on the prior conviction for impeachment issue until the defendant testifies; that the court should rule before trial; and that if the defendant doesn’t like the ruling, he can’t take issue with the propriety of the ruling (the application of Montgomery)unless the defendant testifes and gets convicted.
January 30th, 2009
Kulmeet:
Perfect reading I think…you should have been an appellate or PC lawyer!!!
Bruce
January 30th, 2009
I humbly beg to differ slightly with Kulmeet and his sycophant. The ruling says there are rare instances (I can’t think of any) where the judge can hold off ruling but that rationale has to be pit on the record. It also says that the issue is waived, both for the correctness of the ruling as well as the timeliness, if the defendant doesn’t testify.
Lesson is that if the judge doesn’t rule before the trial starts put him/her up to testify. The case will probably come back (unless evidence is overwhelming) based on the failure to rule in a timely manner. The case talks about how this might be an issue in opening statement so the judge has to rule prior to that or make it clear why.
January 30th, 2009
Beyond the Montgomery issue in Phillips, I think anyway, there was an undercurrent of distaste for the fact that Judge Saks had a blanket policy of not ruling on the Montgomery motion until after the defendant testified. I watched the oral argument, and the high court seemed irritated by that policy. Another case came down from the Illinois Supreme Court on that day, People v. Walker, which involved a trial judge refusing to grant a continuance in a double murder case, where counsel related that she simply misdiaried the trial date. She wanted another week for a continuance, but the trial court refused to even hear the motion for the continuance. 15 years later, the Supreme Court reversed the defendant’s conviction, finding that the trial court exercised no discretion in denying a continuance.
Both the Phillips case and the Walker case indicate at least to me that the Illinois Supreme Court is showing a great deal of concern over the fairness of the procedures themselves. Also, a case handled by Brendan Max in front of Judge Gaughan over a Batson issue indicates the same thing to me. In that case, Judge Gaughan improperly collapsed a Batson hearing. And the first thing Justice Freeman asked the State at oral argument was whether the State should have reminded the trial court of the proper procedure. The high court remanded for a proper Batson hearing.
These three cases and the oral arguments that preceeded them indicate to me that the Illinois Supreme Court is doing an outstanding job monitoring the fairness of the procedures in our criminal courts. I can’t say I agree with their rulings on all of their substantive issues. But I think the procedural rulings have been excellent and could be helpful to our clients.
I also agree with Stephanie Schlegl that Burke’s dissent in the Patrick case is the better reasoned opinion. The issue will probably be revisited, probably even in a petition for rehearing. I talked to the OSAD appellate attorney for Patrick and he hinted so. I would still preserve the Montgomery issue if the guy doesn’t testify, based on Burke’s dissent.
February 1st, 2009
Stu:
I prefer suck-up!
Bruce
February 3rd, 2009
Suck-up, while descriptive, is not as accurate a description.
More importantly, it is important to preserve all issues for appeal based on objections and motion for a new trial. We miss so much that we consider of lesseer importance. I read many decisions by the appellate and supreme court dealing with issues that are waived because they weren’t raised especially in the new trial motion. Much appellate court discussion is over whether an issue is plain error or waived. If we raise them all we don’t have to worry about plain error.
Even after the Phillips decisioncame down in the appellate court, Lacy (it was his case) still refused to rule. I’m not sure where he is at today.
March 13th, 2009
Jennifer Bontrager of the SAD told me today that she won a new trial for my client, Albert Hogan, on the same issue. It’s supposed to be a published opinion.