Invoking Plain Error: Forfeiting Forfeiture

Here's a weird 'how the hell did we get here?' legal rule relating to forfeiture and plain error in criminal appeals. 

In Illinois, to preserve a claim of error for appeal, one must object to the error at trial and include the issue in a post-trial motion. Failure to take these steps will result in forfeiture of that claim of error. Forfeiture means that the appellate court will refuse to consider the error on appeal. Basically, even if there was a mistake in the trial court, you're screwed and won't get any remedy from the appellate court if you failed to "preserve" the claim of error by objecting and including the issue in a post-trial motion. This is pretty basic stuff.

However, in criminal cases, under the "plain error" doctrine, the appellate court may reach a forfeited issue on appeal when certain circumstances exist (e.g., the error was so serious that it affected the fairness of a defendant's trial and challenged the integrity of the judicial process).

Here's where it gets weird.

The defendant must invoke plain error for the forfeiture to be disregarded, but the State must point out the forfeiture for the forfeiture to be honored. In other words, the State can forfeit the benefit of the defendant's forfeiture. Even more weird (I'm choosing not to use the word "dumb"), unlike any other issue in an appeal, the defendant may invoke plain error for the first time in his reply brief. People v. Williams, 193 Ill. 2d 306, 347-48, 739 N.E.2d 455, 477 (2000).

So, on appeal, if a criminal defendant argues forfeited claims of error, he must assert the plain error doctrine. However, if he doesn't invoke plain error, the State must point out that he didn't. If they don't, the appellate court will simply reach the error, even if it was in fact forfeited. But because the defendant may invoke plain error for the first time in his reply brief, the State always acts in vain when it points out the forfeiture (unless the defendant is really stupid and fails to read the State's brief). The State is really doing nothing more than reminding the defendant to invoke plain error in his reply brief.

This process has become a ceremonial ritual without any nexus to the practical concerns of appellate litigation.

Here's how it goes down step-by-step:

  1. Defendant forfeits claim.
  2. Defendant fails to invoke plain error on appeal.
  3. State points out that claim is forfeited and defendant doesn't invoke plain error.
  4. Defendant invokes plain error in reply brief.
  5. Appellate court undertakes plain error analysis. First step in plain error analysis: determine whether any error occurred. People v. Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010). How's that for efficient use of judicial resources?
  6. Concept of forfeiture rendered meaningless.
  7. People of the State of Illinois pay lawyers from the office of the State Appellate Defender, lawyers from the office of the State's Attorney Appellate Prosecutor, law clerks, and Judges for their hours of time working on the defendant's appeal.
  8. Repeat.

I hope the Illinois Supreme Court will revisit its decision in Williams and hold defendants to their forfeiture when they fail to invoke and argue plain error in their opening briefs.