The Illinois high court rules that it isn't reversible error for a trial court to defer ruling on motions in limine to exclude prior convictions unless defendants testify - and that's bad news for defendants who choose not to testify.

Last year, the Illinois Supreme Court held that absent extraordinary circumstances, trial judges should rule on motions in limine in criminal cases before the trial begins and not defer ruling until after the defendants testify. People v Patrick, 233 Ill 2d 62, 908 NE2d 1 (2009).

Now, in a consolidated appeal requesting relief based on a trial court's "blanket policy" of deferring rulings on motions in limine to exclude evidence of prior convictions for impeachment until after defendants testify, the court has reiterated that such a policy is an abuse of discretion. But that abuse is unreviewable on appeal, the court held, where defendants have exercised their right not to testify at trial. The case is People v Aver-ett, Nos 106362, 106621 cons, 2010 WL 1493623 (Ill Sup Ct).

Error, yes - "structural" error, no

Both defendants, Warren Averett and David Tucker, were charged with felonies. Before their respective trials, they moved in limine to exclude evidence of their prior felony convictions.

In Averett's case, the trial court stated that its policy was not to make a decision on the motion until after it heard the defendant's testimony and determined whether the prior convictions were rele vant. In Tucker's case, the trial court found that the motion was premature and stated that it would "deal with the issue when it becomes appropriate."

Averett decided not to testify at his trial because, his counsel stated, he did not want to risk being impeached with his prior convictions if the trial court ruled against him on his motion in li-mine. Tucker, too, decided not to testify.

Juries found both defendants guilty. Panels of the Illinois Appellate Court affirmed, holding that the trial judges' refusals to rule on the motions in limine were unreviewable because the defendants had not testified.

The supreme court rejected the defendants' argument that the trial courts' blanket policies resulted in "structural error," meaning error that rendered the entire proceeding fundamentally unfair or unreliable in determining guilt or innocence. The court explained that for errors to qualify as "structural" they must be egregious, such as denying a defendant counsel, denying the defendant a public trial, or racial discrimination in the selection of a grand jury. The error of a blanket policy of refusing to rule in a timely fashion on motions in limine, the court said, did not rise to that level and, therefore, did not require automatic reversal of the defendants' convictions without any showing of prejudice.

The court was likewise unsympathetic to defendants' argument that the courts' policy violated their constitutional right to testify because it deterred them from doing so. Merely being faced with a difficult decision, the court said, does not rise to the level of a constitutional violation, nor does it deprive them of counsel's guidance.

It also rejected the defendants' argument that the courts' policy constituted plain error. "The rationale of Patrick does not allow the defendants to 'have it both ways' by altering their trial strategies to make the best of the trial courts' deferrals of their rulings and later maintain on appeal that they are entitled to new trials because the deferrals of the rulings were erroneous." Averett at *8.

Defendants must testify to preserve right to appeal

As in Patrick, Justice Burke, joined by Justice Freeman, filed a sharply worded dissent. "It continues to elude me how the majority can recognize that it is 'serious' and prejudicial error for a trial court to refuse to rule on a defendant's motion in limine, and yet deny that defendant relief," Burke wrote. "It remains my belief that a trial court, by refusing to rule, prejudices the defendant in his ability to decide whether to testify." Averett at *14 (Burke dissenting).

Burke opined that the trial courts' refusal to rule on the motions in the cases constituted reversible error and that the defendants' decisions not to tes tify should have had no bearing on the court's decision.

Cook County assistant public defender Stephen W. Baker said, "It's unfortunate that a defendant has to testify to preserve this issue for review. Strategic decisions, including whether a defendant should testify, are dependent largely on a trial court's rulings on issues such as these. If the court decides to leave a defendant in limbo, it compromises the ability of the defendant and counsel to make those decisions."

Baker noted that most defendants do not testify at their trials for a variety of reasons, including but not limited to prior convictions. He said both deferred rulings on the part of trial courts, such as the ones at issue in Averett, and the high court majority's opinion finding them erroneous but unreviewable, show "a disconnect from the real world of practice."

But, he added, "Defense attorneys are a resilient lot. They'll continue to make the decisions they think best for their clients."