Docket No. 99977. 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PERI 

 ALLEN, Appellee. 

Opinion filed June 2, 2006. 

JUSTICE KARMEIER delivered the judgment of the court, with 

opinion. 

Chief Justice Thomas and Justices Fitzgerald and Garman 

concurred in the judgment and opinion. 

Justice Freeman dissented, with opinion, joined by Justices 

McMorrow and Kilbride. 

OPINION

After a jury trial in the circuit court of Will County, defendant, 

Peri Allen, was found guilty of burglary and was sentenced to a fouryear term of imprisonment. The appellate court reversed and 

remanded for a new trial, holding that defendant had Aadequately 

alleged plain error@ where the trial court abused its discretion in 

requiring defendant to wear an electronic stun belt as a restraining 

device at trial without the explicit analysis and finding of necessity 

required by People v. Boose, 66 Ill. 2d 261 (1977). 354 Ill. App. 3d 

442, 446. We granted the State=s petition for leave to appeal under 

Rule 315 (177 Ill. 2d R. 315), and granted Paul J. Kaupas, Will 

County sheriff, permission to file an amicus curiae brief in support of 
-2-

the State (155 Ill. 2d R. 345(a)). 

Defendant was indicted for the offense of burglary for entering a 

motor vehicle, belonging to Will County Auto Wreckers, with the 

intent to commit a theft. Prior to jury selection on February 11, 2003, 

defense counsel asked to approach the bench for a sidebar conference 

with the trial judge, after which the judge stated: AApparently the 

defendant still has his handcuffs on. They have been under the table 

there, so the jurors didn=t get all the way into the courtroom so there 

should be no problem, but if we can take them off now. Okay. Thank 

you.@ Two days later, after the trial court=s denial of defendant=s 

motion for a directed verdict and immediately prior to the State 

resting and defense counsel calling defendant to the stand, the 

following colloquy occurred: 

A[Defense Counsel]: Oh, your Honor, one thing. I don=t 

know exactly what it is that [defendant] has. There is 

something that he is wearing on his back andB

THE COURT: Well, it is under his clothes, correct? 

[Defense Counsel]: Right, but even standing here I can 

notice it. It is a fairly noticeable object. 

THE COURT: Would you prefer to just have him seated 

in the witness stand at this point? 

[Defense Counsel]: I would prefer unless that can be 

removed somehow. 

THE COURT OFFICER: No. 

THE COURT: That=s a security device. The deputy has 

control of it. [Defendant] does not have shackles on. He does 

not have handcuffs on. He is in custody and he is restrained in 

no other manner whatsoever, so for security purposes we 

keep that on him. At this time it has been out of view. It is 

under his clothes, but I think that if he did walk across the 

room, [the jury] may view something or a form of some kind 

under his clothes, so if you prefer to have him seated in the 

box, we can do that now. 

[Defense Counsel]: Can we do that now? 

THE COURT: Have a seat right up here, sir. When you=re 

sworn in, I suppose you can just sit. You don=t have to stand 

to be sworn in. 
-3-

DEFENDANT: Right. 

THE COURT: That way they=ll never see it. All right, 

bring the jurors in.@ (Emphasis added.) 

No further mention of the Asecurity device@ was made at trial, and 

defendant did not include any issue concerning the restraint in his 

posttrial motion. 

On direct appeal, the sole issue raised by defendant was Awhether 

it was error for the defendant to be forced to wear an electronic 

security belt as a restraining device at trial.@ 354 Ill. App. 3d at 443. 

Initially, we agree with the appellate court that while the trial court 

never referred to the Asecurity device@ as an electronic stun belt, Awe 

feel confident in our assessment that it was indeed that type of 

restraining device.@ 354 Ill. App. 3d at 443. The State does not 

suggest what the bulging security device under defendant=s shirt 

might have been, other than a stun belt. The appellate court=s finding 

is especially probable where, in People v. Martinez, 347 Ill. App. 3d 

1001, 1003 (2004), another recent Will County circuit court case, the 

State asked the appellate court to validate the Will County sheriff=s 

Astandard operating procedure@ of requiring all felony defendants in 

custody to wear a stun belt while appearing in court. Even the dissent 

agrees that such a Ablanket policy@ existed in the Will County 

sheriff=s department. Slip op. at 31 n.6 (Freeman, J., dissenting, 

joined by McMorrow, J. and Kilbride, J.) In addition, there is at least 

one other case pending before this court involving the use of 

electronic stun belts on felony defendants in Will County. See People 

v. Johnson, 356 Ill. App. 3d 208 (3d Dist. 2005), leave to appeal 

pending, No. 100451. 

Having agreed with the appellate court that defendant was 

wearing an electronic stun belt, we now examine whether Boose, 

which generally applies to the Aphysical restraint@ of defendants in the 

courtroom (Boose, 66 Ill. 2d at 266), also applies to the concealed 

electronic restraint involved in this case. First, the Will County 

sheriff, as amicus curiae, argues, inter alia, that an electronic 

Asecurity belt@ is not a restraining device that lends itself to due 

process scrutiny pursuant to Boose, citing Deck v. Missouri, 544 U.S. 

___, 161 L. Ed. 2d 953, 125 S. Ct. 2007 (2005). However, Deck does 

not speak to the circumstances present here. In Deck, the United 

States Supreme Court concluded that due process Aprohibit[s] the use 
-4-

of physical restraints visible to the jury absent a trial court 

determination, in the exercise of its discretion, that they are justified 

by a state interest specific to a particular trial.@ (Emphasis added.) 

Deck, 544 U.S. at ___, 161 L. Ed. 2d at 963, 125 S. Ct. at 2012. 

Nowhere in Deck does the Court consider the question raised herein, 

i.e., whether a concealed electronic stun belt worn under a 

defendant=s garments should be classified as a Aphysical restraint@

which lends itself to due process scrutiny. Accordingly, Deck does 

not support the argument of amicus, as it does not even address 

concealed restraints. Indeed, we find that the Deck Court=s stated 

reasons which prompt due process scrutiny in visible restraint 

casesBthe presumption of innocence, securing a meaningful defense, 

and maintaining dignified proceedingsBmay be applied with like 

force to stun belts which are not necessarily visible to the jury. See 

Deck, 544 U.S. at ___, 161 L. Ed. 2d at 963-64, 125 S. Ct. at 2013. 

In In re Staley, 67 Ill. 2d 33, 37 (1977), this court stated: 

AThe possibility of prejudicing a jury, however, is not the 

only reason why courts should not allow the shackling of an 

accused in the absence of a strong necessity for doing so. The 

presumption of innocence is central to our administration of 

criminal justice. In the absence of exceptional circumstances, 

an accused has the right to stand trial >with the appearance, 

dignity, and self-respect of a free and innocent man.=

[Citation.] It jeopardizes the presumption=s value and 

protection and demeans our justice for an accused without 

clear cause to be required to stand in a courtroom in manacles 

or other restraints while he is being judged.@

Thus, even when there is no jury, any unnecessary restraint is 

impermissible because it hinders the defendant=s ability to assist his 

counsel, runs afoul of the presumption of innocence, and demeans 

both the defendant and the proceedings. See Staley, 67 Ill. 2d at 36-

37; Martinez, 347 Ill. App. 3d at 1005-06. We therefore agree with 

the appellate court herein which, citing Martinez, concluded that an 

electronic stun belt Ais no less a restraint than manacles or handcuffs.@

354 Ill. App. 3d at 445. 

As noted by defendant, it appears that almost every court which 

has reviewed this issue has held that electronic stun belts are 

restraining devices the use of which is subject to the same restrictions 
-5-

as shackles. See, e.g., United States v. McKissick, 204 F.3d 1282, 

1299 (10th Cir. 2000); People v. Mar, 28 Cal. 4th 1201, 1219-20, 52 

P.3d 95, 106, 124 Cal. Rptr. 2d 161, 175 (2002); People v. Melanson, 

937 P.2d 826, 835 (Colo. App. 1996); Young v. State, 269 Ga. 478, 

479, 499 S.E.2d 60, 61 (1998); State v. Adams, 103 Ohio St. 3d 508, 

529-30, 817 N.E.2d 29, 52-53 (2004). One exception to this approach 

for dealing with electronic stun belts is found in Wrinkles v. State, 

749 N.E.2d 1179, 1194 (Ind. 2001), wherein the Supreme Court of 

Indiana banned the use of such restraints from its courtrooms 

altogether. However, contrary to the dissent=s contention, in this case 

we are not faced with the question of whether stun belts should 

continue to be used in Illinois courtrooms. Rather, we are asked to 

determine whether, and we find that, this court=s holdings in Boose

and Staley regarding shackles apply equally to those defendants who 

are restrained by means of an electronic stun belt worn under their 

clothing at trial, and that nothing in Deck precludes application of due 

process protections to such cases. 

Given these findings, we hold that the use of electronic stun belts 

in the courts of this state is warranted only where there has been a 

showing of manifest need for the restraint. See Boose, 66 Ill. 2d at 

265-66. This holding comes with the understanding that there are 

certain circumstances that will require restraint of a defendant at trial. 

Factors to be considered by the trial court in making this 

determination may include: (1) the seriousness of the present charge 

against the defendant, (2) the defendant=s temperament and character, 

(3) the defendant=s age and physical characteristics, (4) the 

defendant=s past record, (5) any past escapes or attempted escapes by 

the defendant, (6) evidence of a present plan of escape by the 

defendant, (7) any threats by the defendant to harm others or create a 

disturbance, (8) evidence of self-destructive tendencies on the part of 

the defendant, (9) the risk of mob violence or of attempted revenge 

by others, (10) the possibility of rescue attempts by other offenders 

still at large, (11) the size and mood of the audience, (12) the nature 

and physical security of the courtroom, and (13) the adequacy and 

availability of alternative remedies. Boose, 66 Ill. 2d at 266-67. 

The determination of whether and how to restrain a defendant is 

left to the discretion of the trial court, and a reviewing court examines 

whether the trial court has abused that discretion. Boose, 66 Ill. 2d at 

267. The trial court should state for the record its reasons for 
-6-

allowing the defendant to remain physically restrained, and it should 

give the defendant=s counsel an opportunity to present reasons why 

the defendant should not be restrained. Boose, 66 Ill. 2d at 266. In 

this case, the State argues that the trial court did not abuse its 

discretion in ordering the stun belt to remain on defendant without 

conducting a Boose hearing. However, based on the record presented, 

we disagree. The only reason given by the court to sustain its ruling 

was that the restraint was necessary Afor security purposes.@ While 

the security of the courtroom is indeed one of the factors to be 

considered, without further explanation or justification by the court 

and where it appears that no other ABoose factors@ supported this 

decision, we find the trial court=s ruling to be an abuse of its 

discretion. 

Here, as in Martinez, the trial court never made a Boose analysis; 

it simply deferred to the judgment of the sheriff. We agree with the 

Martinez court that this abdication of the trial court=s responsibility is 

not acceptable. AThe court must rigorously control its own courtroom 

procedures and, consistent with the mandates of due process, protect 

the rights of the parties and the public.@ Martinez, 347 Ill. App. 3d at 

1004. Indeed, the type of policy adopted by the Will County sheriff, 

requiring all custodial felony defendants to wear stun belts while in 

court, was frowned upon by this court almost 30 years ago in Boose. 

A >The fact that defendant was a state prison inmate who had 

been convicted of robbery and was charged with a violent 

crime did not, without more, justify the use of physical 

restraints. *** [T]he trial judge must make the decision to use 

physical restraints on a case-by-case basis. The court cannot 

adopt a general policy of imposing such restraints *** unless 

there is a showing of necessity on the record. The court=s 

summary denial of the motion to release defendant from his 

shackles was not based upon such a showing of record and 

implies a general policy of shackling all inmate defendants 

accused of violent crimes.= @ (Emphasis added.) Boose, 66 Ill. 

2d at 268, quoting People v. Duran, 16 Cal. 3d 282, 293, 545 

P.2d 1322, 1329, 127 Cal. Rptr. 618, 625 (1976). 

Accordingly, we hold that the trial court=s failure to follow the 

procedures set forth in Boose before ordering that defendant continue 

to wear an electronic stun belt during his trial constitutes a due 
-7-

process violation. See People v. Crutchfield, 353 Ill. App. 3d 1014, 

1021 (2004); Martinez; 347 Ill. App. 3d at 1004. 

In Martinez, the appellate court, upon finding that the trial court 

had abdicated its responsibility to determine the measures necessary 

to assure courtroom security, reversed the defendant=s conviction and 

remanded for a new trial. Martinez, 347 Ill. App. 3d at 1005. 

However, in this case, as the appellate court noted, defendant did not 

even mention the electronic restraint at any time until the third day of 

his trial, while the defendant in Martinez objected vigorously. 354 Ill. 

App. 3d at 445; see also Staley, 67 Ill. 2d at 35-38 (reversal and 

remand for new adjudicatory hearing required where no Boose

hearing conducted by trial court after defense counsel moved that 

defendant=s handcuffs be removed during adjudicatory hearing). 

Defense counsel=s statement AI would prefer [defendant be seated in 

the witness stand before the jury returns] unless [the stun belt] can be 

removed somehow@ does not constitute an objection, but merely an 

alternative to the court=s suggestion on how to keep the jury from 

seeing the device under defendant=s clothing. After the court rejected 

counsel=s alternative suggestion to remove the restraint, counsel did 

not ask that an objection be noted on the record or that a Boose

hearing be held, but simply deferred to the procedure suggested by 

the court. 

The failure to object to alleged error at trial and raise the issue in 

a posttrial motion ordinarily results in the forfeiture of the issue on 

appeal. People v. Enoch, 122 Ill. 2d 176, 186-87 (1988).1

 The 

appellate court herein therefore reasoned that it must decide whether 

the trial court=s error Awas so significant that it warrants plain error 

review.@ 354 Ill. App. 3d at 445. The majority then determined that 

People v. Doss, 347 Ill. App. 3d 418 (2004), was controlling, as there 

Awe found plain error, since the defendant was denied a fair trial 

because of the failure of the trial court to conduct the appropriate 

manifest need analysis before ordering the defendant to be shackled 

 

 1While courts often use the terms Aforfeit,@ Awaive,@ and Aprocedural 

default@ interchangeably in criminal cases, for purposes of this opinion, we 

choose to use Aforfeited@ to mean issues that could have been raised, but 

were not, and are therefore barred. See People v. Blair, 215 Ill. 2d 427, 444 

n.2 (2005). 
-8-

at trial.@ 354 Ill. App. 3d at 446. Thereafter, the appellate court held 

that here, as in Doss, defendant had Aadequately alleged plain error@

which justified its review and also required the reversal of 

defendant=s conviction and remand for a new trial. 354 Ill. App. 3d at 

446. We disagree with the appellate court=s reasoning and also its 

conclusions. 

Supreme Court Rule 615(a) provides: AAny error, defect, 

irregularity, or variance which does not affect substantial rights shall 

be disregarded. Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the trial 

court.@ (Emphasis added.) 134 Ill. 2d R. 615(a). In People v. Herron, 

215 Ill. 2d 167, 178-79 (2005), this court recently stated as follows: 

AThe plain-error doctrine, as it has developed in Illinois, 

allows a reviewing court to reach a forfeited error affecting 

substantial rights in two circumstances. First, where the 

evidence in a case is so closely balanced that the jury=s guilty 

verdict may have resulted from the error and not the evidence, 

a reviewing court may consider a forfeited error in order to 

preclude an argument that an innocent person was wrongly 

convicted. [Citation.] Second, where the error is so serious 

that the defendant was denied a substantial right, and thus a 

fair trial, a reviewing court may consider a forfeited error in 

order to preserve the integrity of the judicial process. 

[Citations.] This so-called disjunctive test does not offer two 

divergent interpretations of plain error, but instead two 

different ways to ensure the same thingBnamely, a fair trial.@

(Emphasis added.) 

In another recent case, People v. Brown, 356 Ill. App. 3d 1088, 

1090-91 (2005), the appellate court majority, as did the appellate 

court majority herein, cited Doss for the proposition that restraining 

defendants without a Boose hearing automatically constitutes plain 

error and is not subject to forfeiture. However, we agree with Justice 

Schmidt=s partial dissent in Brown, which argued that the majority 

was misreading Doss. Indeed, Justice Schmidt, who authored the 

Doss opinion, stated: ADoss did not hold that it is always plain error 

to shackle a defendant without a Boose hearing. Rather, the shackling 

issue was reviewed under the plain error doctrine because we found 

the evidence closely balanced.@ Brown, 356 Ill. App. 3d at 1091 
-9-

(Schmidt, J., concurring in part and dissenting in part). In the appeal 

before us, defendant appears to have accepted this interpretation of 

Doss. Indeed, defendant impliedly admits that the evidence was not 

closely balanced where he contends only that the second type of plain 

error occurred, stating: A[I]t was such a serious error that it threatened 

the fundamental fairness of the defendant=s trial and the integrity of 

the judicial process.@

In Herron, 215 Ill. 2d at 187, this court further described the 

second prong of the plain error test, stating: AIn the second instance, 

the defendant must prove there was plain error and that the error was 

so serious that it affected the fairness of the defendant=s trial and 

challenged the integrity of the judicial process. [Citation.] Prejudice 

to the defendant is presumed because of the importance of the right 

involved ***. *** [However,] the burden of persuasion remains with 

the defendant.@ (Emphasis added.) Indeed, defendant, citing this 

passage from Herron, acknowledges that he bears the burden of 

persuasion as to whether the error was so serious that it affected the 

fairness of his trial and challenged the integrity of the judicial 

process. Thus, given the test for determining plain error under the 

Asecond prong@ as set forth in Herron, we agree with Crutchfield, 353 

Ill. App. 3d at 1021, a case from the Fifth District of the appellate 

court which, under facts similar to those presented here, held that 

even constitutional errors can be forfeited (see People v. Thurow, 203 

Ill. 2d 352, 363-64 (2003)) if the error is not of such magnitude that it 

deprives the defendant of a fair trial. See People v. Graham, 206 Ill. 

2d 465, 476 (2003). See also People v. Barney, 363 Ill. App. 3d 590 

(2006); People v. DuPree, 353 Ill. App. 3d 1037 (2004) (both holding 

that the physical restraint of a defendant at trial does not 

automatically amount to plain error). 

Moreover, a fair trial is different from a perfect trial. Herron, 215 

Ill. 2d at 177; People v. Bull, 185 Ill. 2d 179, 214 (1998). The plainerror doctrine is not A >a general saving clause preserving for review 

all errors affecting substantial rights whether or not they have been 

brought to the attention of the trial court.= @ Herron, 215 Ill. 2d at 177, 

quoting People v. Precup, 73 Ill. 2d 7, 16 (1978). Instead, it is a 

narrow and limited exception to the general rule of forfeiture, whose 

purpose is to protect the rights of the defendant and the integrity and 

reputation of the judicial process. Herron, 215 Ill. 2d at 177. Thus, 

while defendant herein has proven a due process violation which 
-10-

amounted to error by showing that he was required to wear an 

electronic stun belt at trial without the court having first determined 

that it was necessary, defendant has failed to persuade this court Athat 

the error was so serious that it affected the fairness of [his] trial and 

challenged the integrity of the judicial process.@ Herron, 215 Ill. 2d at 

187; see also People v. Nicholas, 218 Ill. 2d 104, 121 (2005) (the 

burden of persuasion remains with the defendant under the second 

prong of the plain error test, but before the court may apply either 

prong, there must be a plain error). 

Here, defendant cannot, and does not, claim that the evidence 

presented was closely balanced. Further, he has not shown that his 

presumption of innocence, ability to assist his counsel, or the dignity 

of the proceedings was compromised. In fact, defendant wore the 

electronic device into the third day of his jury trial with no objection, 

complaint, or any apparent difficulty consulting with his counsel. 

Thus, we agree with the appellate court in Nicholas that although the 

failure to conduct a Boose hearing under these circumstances is an 

error, defendant=s failure to object and to carry his burden of 

persuasion amounts to forfeiture of the error, where he cannot 

establish that it prevented him from obtaining a fair trial. See Estelle 

v. Williams, 425 U.S. 501, 512-13, 48 L. Ed. 2d 126, 135, 96 S. Ct. 

1691, 1697 (1976) (although the State cannot compel an accused to 

stand trial before a jury in prison clothes, the failure to make an 

objection to the court to being tried in such clothes, for whatever 

reason, is sufficient to negate the presence of compulsion necessary 

to establish a constitutional violation); see also People v. Hyche, 77 

Ill. 2d 229, 241 (1979) (rejecting the defendant=s contention that his 

conviction should be reversed due to his appearance before the venire 

in handcuffs, where he Awaived any error by failing to object@). 

Further, we reject the dissent=s attempt to distinguish Estelle and 

Hyche, where those cases, as here, recognized that a serious assault 

on the defendant=s presumption of innocence was implicated, but held 

that the defendant had failed to properly preserve the error for review. 

Estelle, 425 U.S. at 513, 48 L. Ed. 2d at 135, 96 S. Ct. at 1697; 

Hyche, 77 Ill. 2d at 241. While the dissent contrasts Hyche with 

People v. Buss, 187 Ill. 2d 144, 215 (1999), wherein the court chose 

to review a shackling issue on its merits, the dissent fails to note that 

the defendant in Buss had filed a pretrial motion to preclude 

shackling and had included the issue in his posttrial motion. Only in 
-11-

the alternative did he argue plain error or that his counsel was 

ineffective for failing to properly preserve the issue for review. 

Additionally, although the dissent states that this court, in Buss,

Acited with approval People v. Bennett, 281 Ill. App. 3d 814 (1996)@

(slip op at 23 (Freeman, J. dissenting, joined by McMorrow and 

Kilbride, JJ.)), the Bennett court held Ait was plain error for the judge 

in this case to deny the defense request to have the defendant=s 

shackles removed,@ when Athe only reason the judge gave for refusing 

the defense motion related to the security of the courtroom@ and the 

court failed to address the other Boose factors. Bennett, 281 Ill. App. 

3d at 825. 

Next, we note that in his dissent, Justice Freeman agrees with the 

majority opinion that the issue presented in this case is Awhether 

defendant is entitled to a new trial because he was made to wear, 

without a showing of manifest need, an electronic stun belt as a 

restraining device during his trial.@ Slip op. at 16 (Freeman, J., 

dissenting, joined by McMorrow and Kilbride, JJ.). However, after 

defining the parameters of the case, the dissent goes on to enlarge 

those parameters by contending that we should also address the 

propriety of using stun belts in any criminal trial. While we might 

agree with some of the medical and other important concerns 

identified in the lengthy dissent, as we previously noted, the issue of 

whether to continue to use such restraints in Illinois courts is, 

unfortunately, simply not raised in this case. Thus, despite the 

dissent=s desire for this court to determine whether stun belts are an 

acceptable form of restraint in Illinois, until a case comes before us 

which actually raises that particular issue, any attempt to answer such 

an abstract question would be improper. See People v. Campa, 217 

Ill. 2d 243, 269 (2005) (as a general rule, a court of review will not 

decide moot or abstract questions or render advisory opinions). 

Therefore, the dissent=s claim that this court=s opinion has Athe 

effect of countenancing the continued use of stun belts@ in Illinois, 

simply because we decline to engage in dicta, is unfair at best. Slip 

op. at 39 (Freeman, J., dissenting, joined by McMorrow and Kilbride, 

JJ.). Indeed, contrary to that assertion, the majority, in addressing the 

limited issues raised in this case of first impression, fully appreciates 

the impact that electronic restraints may have on a defendant=s trial 

rights. This opinion sends a clear message to the trial courts: control 

of the courtroom is vested in the trial judge. While the sheriff may be 
-12-

responsible for courtroom security, it is the trial judge who makes the 

determination as to how security involving a defendant who is on 

trial is handled, so as to fully protect his constitutional rights. 

Towards that end, a Boose hearing is required in stun belt cases, as in 

shackle or handcuff cases, because regardless of the differences 

between the types of restraints, they each implicate due process 

concerns and thus require strict limits be placed on their use. 

Additionally, this opinion takes judicial notice of the routine use 

of stun belts on felons in other Will County cases in order to establish 

the fact of their use here, and cites cases both in and outside our 

jurisdiction in support of our holding that stun belts should be subject 

to a Boose hearing. The dissent, however, relies on information 

outside the record and cases outside our jurisdiction to speculate as to 

the type and effect of the stun belt worn in this case and to proselytize 

for a ban on the use of stun belts in Illinois, an issue which we have 

clearly determined to be outside the scope of this appeal. The facts 

are that defendant himself did not ask that we determine whether the 

Amedical impact@ or anxiety which stun belts may create makes them 

an improper form of restraint under all circumstances, and there is 

nothing of record to show that the type of electronic device worn in 

the nonprecedential cases cited by the dissent are in any way similar 

to the device worn by defendant. Further, although the dissent agrees 

that defendant has forfeited the issues regarding the trial court=s 

requirement that he wear an electronic restraint where neither he nor 

his counsel made any overt complaint at trial or in a posttrial motion 

(People v. Enoch, 122 Ill. 2d 176, 186-87 (1988), the dissent then 

invites speculation as to what defendant could have been 

experiencing. Such speculation is completely irrelevant and has no 

place in this court=s review, which must be based solely on the facts 

of record. See People v. Guerrero, 356 Ill. App. 3d 22, 28-29 (2005); 

People v. Colon, 20 Ill. App. 3d 858, 864 (1974) (reviewing court 

cannot speculate as to facts that do not appear in the record). 

A fair reading of the cold transcript leads us to the more likely 

conclusion that defendant was not suffering any of the anxiety or 

nervousness speculated upon by the dissent. As noted, what the 

record does show is that neither defendant nor his counsel objected to 

the use of the stun belt at any time. Counsel=s only expressed concern, 

made on the third day of trial, when defendant was about to take the 

witness stand, was that whatever defendant was wearing under his 
-13-

clothes might be visible to the jury as he walked across the room to 

take the stand. The colloquy between defense counsel and the trial 

judge clearly reveals that counsel did not even know what defendant 

was wearing under his clothes. This fact supports the inference that 

defendant never expressed any concern to his attorney about wearing 

the device, nor did it impinge on his ability to work with counsel. See 

Buss, 187 Ill. 2d at 217 (no error occurred where: (1) the trial court=s 

initial failure to state his reasons for requiring shackling was 

Apresumably because defense counsel indicated that defendant did not 

object to leg shackles so long as the jury did not see them;@ (2) the 

court explained its reasons for the shackling in detail during its denial 

of the defendant=s post trial motion; (3) Athe tables in the courtroom 

had been skirted so that the shackling *** was >never obvious to the 

jurors;= @ and (4) defendant=s ability to consult with counsel had not 

been hindered by the shackling). Here, the dissent can point to 

nothing of record which demonstrates that defendant was made 

nervous or anxious by the fact that he was wearing the device. Thus, 

none of the actions of defendant, his counsel or the court support the 

conclusion that defendant=s presumption of innocence or the dignity 

of the court was effected by the error in failing to hold the requisite 

Boose hearing. Instead, counsel=s concern about the possibility of the 

jury=s seeing the bulky device under defendant=s clothing was 

resolved by the trial court=s action in seating defendant on the stand 

before the jury reentered the courtroom. 

Further, we disagree with the dissent=s claim that this procedure 

of Apreseating@ the defendant, because it was dissimilar to that used 

with previous witnesses, would cause the jury to Aattach undue 

significance to such discrepancies.@ Slip op. at 29 (Freeman, J., 

dissenting, joined by McMorrow and Kilbride, JJ.). It is just as 

reasonable to draw the opposite conclusion, i.e., that while those of 

us Atrained in the law@ (slip op. at 29 (Freeman, J., dissenting, joined 

by McMorrow and Kilbride, JJ.)) and familiar with court proceedings 

would know that it is somewhat unusual for witnesses to already be 

seated when court reconvenes and the jury reenters, few lay people, 

not being involved in jury trials on a regular basis, would actually 

discern this difference, much less impute a negative connotation 

toward defendant from it. Nor does the dissent=s quotation from 

Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90 S. Ct. 

1057, 1061 (1970), that disparate treatment of defendant from other 
-14-

witnesses not on trial A >might have a significant effect on the jury=s 

feelings about the defendant= @ support his theory. Slip op. at 20, 29 

(Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.), 

quoting Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90 

S. Ct. 1057, 1061 (1970). This comment by the Court in Allen in no 

way dealt with any disparate treatment of defendant from other 

witnesses, but concerned the jury=s response to Athe sight of shackles 

and gags@ on that defendant after he displayed conduct which was 

disorderly, disruptive and disrespectful to the court. Allen, 397 U.S. 

at 343-44, 25 L. Ed. 2d at 359, 90 S. Ct. at 1061. 

Finally, we object to the dissent=s statement that Athe unjustified 

use of the stun belt in this case is deemed inconsequential by a 

majority of this court.@ Slip op. at 39 (Freeman, J., dissenting, joined 

by McMorrow and Kilbride, JJ.). The instant matter presented a 

narrow issue which we have resolved through the consistent use of 

this court=s previous case law. We have cited as controlling this 

court=s findings in Boose and Staley that a trial court=s failure to 

examine the necessity of requiring a defendant to wear restraints at 

trial is a due process violation, and continued this line of reasoning to 

include not only visible restraints, but the type of Asemi-hidden@

electronic device used herein. Therefore, contrary to the dissent=s 

assertion, we have most definitely shown that an error such as 

occurred here has consequences. However, Boose and Staley , as well 

as Martinez and Deck, present a different factual situation which 

allows for a per se finding of reversible error which is not applicable 

under the facts presented in this case. Here, unlike the 

aforementioned cases where a trial objection was made, due to 

defendant=s complete forfeiture of the issue, not only the fact of the 

error but proof that the error Aaffected the fairness of the defendant=s 

trial and challenged the integrity of the judicial process@ was 

necessary. Herron, 215 Ill. 2d at 187; see also Barney, 363 Ill. App. 

3d at 597 (AThe necessity to preserve the integrity and reputation of 

the judicial process is a purpose of the [plain error] doctrine, not a 

lone, triggering factor for its implementation@). Thus, simply because 

we follow the strict application of that doctrine as recently set forth in 

Herron and find that defendant has not met his burden of persuasion 

does not mean we are in conflict with our decisions in Boose and 

Staley; cases with different facts must be decided based on those 

facts. Nor is the Supreme Court=s holding in Deck that a defendant 
-15-

need not demonstrate actual prejudice to make out a due process 

violation contrary to our decision, which finds a due process violation 

but refuses to find plain error in the violation. 

As this court stated in People v. Blue, 189 Ill. 2d 99, 138 (2000), 

A[t]o determine whether defendant=s right to a fair trial has been 

compromised *** [under] the second prong of the plain error test *** 

[w]e ask whether a substantial right has been affected to such a 

degree that we cannot confidently state that defendant=s trial was 

fundamentally fair.@ We thus agree with the dissent and with 

defendant that the trial court=s actions here amounted to error. 

However, under the circumstances presented, we are not persuaded 

that such error resulted in fundamental unfairness or caused a Asevere 

threat@ to the fairness of defendant=s trial. See People v. Durr, 215 Ill. 

2d 283, 298, 308 (2005). Thus, where defendant has failed to 

establish plain error under the second prong as set forth in Herron, 

we hold that the procedural default of this issue must be honored. See 

Durr, 215 Ill. 2d at 308; see also Blair, 215 Ill. 2d at 444 n.2 

(Aprocedural default@ relates to the failure by counsel to comply with 

certain procedural requirements which results in the forfeiture of the 

defendant=s right to raise that error on appeal). Because we find that 

the right to review is forfeited in this case, we need not reach the 

question which divided the appellate court below, i.e., whether a new 

proceeding or merely a retrospective Boose hearing is the proper 

remedy where plain error has occurred. 

For these reasons, the judgment of the appellate court is 

reversed and the judgment of conviction entered by the circuit court 

is affirmed. 

Appellate court judgment reversed; 

circuit court judgment affirmed.

JUSTICE FREEMAN, dissenting: 

The issue in this case is whether defendant is entitled to a new 

trial because he was made to wear, without a showing of manifest 

need, an electronic stun belt as a restraining device during his trial. 

This court has never addressed the propriety of using this particular 

kind of restraint at a criminal trial. However, as today=s opinion 

makes clear, there exists a body of our case law which addresses how 

other types of security devices impact upon a defendant=s trial rights. 

Indeed, the court acknowledges that the Astated reasons which prompt 
-16-

due process scrutiny in visible restraint casesBthe presumption of 

innocence, securing a meaningful defense, and maintaining dignified 

proceedingsBmay be applied with like force to stun belts which are 

not necessarily visible to the jury.@ (Emphasis added.) Slip op. at 4. 

My colleagues in the majority then hold that this court=s holdings in 

People v. Boose, 66 Ill. 2d 261 (1977), and In re Staley, 67 Ill. 2d 33 

(1977), Aapply equally to those defendants who are restrained by 

means of an electronic stun belt worn under clothing at trial and that 

nothing *** precludes applications of due process protections to such 

cases.@ (Emphasis added.) Slip op. at 5. The court further holds that a 

Atrial court=s failure to follow the procedures set forth in Boose before 

ordering that defendant continue to wear an electronic stun belt 

during his trial [constitutes] a due process violation.@ Slip op. at 6-7. 

However, in finding that an error of constitutional proportions has 

occurred in this case, the court states that Ait is not persuaded that the 

error resulted in fundamental unfairness or caused a >severe threat= to 

the fairness of his trial.@ Slip op. at 15. After considering our case law 

on restraints and the nature of the electronic stun belt, I am persuaded 

that the error resulted in fundamental unfairness or caused a Asevere 

threat@ to the fairness of the trial. I would hold that defendant has 

satisfied the second prong of our plain error rule, i.e., that the error 

was so serious that it affected the fairness of defendant=s trial and that 

it challenged the integrity of the judicial process For these reasons, I 

dissent. 

I 

The court correctly notes that defendant did not properly preserve 

this issue for review. While my colleagues view the remarks between 

defense counsel and the trial judge as a failure to object, I view them 

somewhat differently. Defense counsel stated that his preference was 

for defendant not to wear the belt at all. As the excerpt from the 

transcript demonstrates, however (see slip op. at 2-3), the trial judge 

made clear that such a preference would be out of the question. In 

other words, the use of the belt was not open to argument. I would 

characterize the colloquy between the two as being enough to register 

a contemporaneous objection. This is an academic quibble, however, 

as defendant did not include the matter in his posttrial motion, and his 

failure to do so results in the issue=s procedural default on appeal. 
-17-

People v. Enoch, 122 Ill. 2d 176, 186 (1988). 

Nevertheless, this court has long recognized that the doctrine 

concerning procedural default is not absolute. People v. Carlson, 79 

Ill. 2d 564, 576 (1980), citing People v. Burson, 11 Ill. 2d 360 (1957). 

Indeed, this court has developed a plain-error doctrine which allows a 

reviewing court to reach a forfeited error in certain circumstances. 

The doctrine, adopted formally as Supreme Court Rule 615, serves as 

A>narrow and limited exception= to the general *** rule [of procedural 

default].= @ People v. Szabo, 113 Ill. 2d 83, 94 (1986), quoting People 

v. Pastorino, 91 Ill. 2d 178, 188 (1982).

This court has recently acknowledged that the purpose of the 

doctrine is Ato protect the rights of the defendant and the integrity and 

reputation of the judicial process.@ People v. Herron, 215 Ill. 2d 167, 

177 (2005), citing People v. Howell, 60 Ill. 2d 117, 121 (1975). In 

Herron, we reaffirmed that our plain-error doctrine allows a 

reviewing court to consider unpreserved error in two distinct 

circumstances: (i) in instances of prejudicial error which may have 

affected the outcome in a closely balanced case, and (ii) in instances 

of presumptively prejudicial error which must be remedied even 

though it may not have affected the outcome. Herron, 215 Ill. 2d at 

185. Under the first prong, a defendant must both prove that an error 

occurred (see People v. Sims, 192 Ill. 2d 592, 621 (2000) quoting 

People v. Wade, 131 Ill.2d 370, 376 (1989) (A[b]efore invoking the 

plain error exception, however, >it is appropriate to determine 

whether error occurred at all= @)) and that Athe evidence was so 

closely balanced that the error alone severely threatened to tip the 

scales of justice against him. The State, of course, can respond by 

arguing that the evidence was not closely balanced, but rather 

strongly weighted against the defendant.@Herron, 215 Ill. 2d at 187. 

Under the second prong, a defendant must prove both that an error 

occurred and that 

the error was so serious that it affected the fairness of the 

defendant=s trial and challenged the integrity of the judicial 

process. [Citation.] Prejudice to the defendant is presumed 

because of the importance of the right involved [emphasis 

added], >regardless of the strength of the evidence.=

(Emphasis in original.) Blue, 189 Ill. 2d at 138. In both 

instances, the burden of persuasion remains with the 
-18-

defendant.@ Herron, 215 Ill. 2d at 187. 

Under the first prong, a defendant must establish that he was 

prejudiced by the error. Under the second prong, defendant need not 

establish specific prejudice, but rather, must show that the error 

served to erode the integrity of the judicial process and undermined 

the fairness of the trial proceedings. 

It is important to distinguish between the two prongs of the rule. 

As this court noted in People v. Mullen, 141 Ill. 2d 394, 402 (1990), 

in cases Awhere the evidence is closely balanced, the probability that 

a defendant=s conviction was caused by even a minor trial error is 

greatly enhanced.@ Therefore, in those cases, the court will invoke the 

plain error rule so that it can determine whether an error, which was 

not objected to at trial and in post-trial motions, raises doubts as to 

the validity of the jury=s verdict.@ Thus, the reviewing court concerns 

itself with the specific effect that an alleged error may have had on 

the jury. In contrast, the second prong of the rule encompasses those 

errors Aof such magnitude that the commission thereof denies the 

accused a fair and impartial trial.@ People v. Carlson, 79 Ill. 2d 564, 

576-77 (1980). As Justice Ryan explained over 25 years ago, 

Aunder this second aspect of the plain error rule, the errors 

that will be considered as not having been waived, although 

not properly preserved, are those that are so fundamental to 

the integrity of the judicial process that they cannot be waived 

or forfeited by the failure to raise them in the trial court. I also 

believe that, being so fundamental to the integrity of the 

judicial process, they must be considered by the court 

regardless of the guilt of the defendant and therefore the 

harmless error test, even harmless error beyond a reasonable 

doubt, is not relevant.@ People v. Green, 74 Ill. 2d 444, 456-

57 (1979) (Ryan, J., specially concurring). 

Thus, this prong is designed to give the court the ability to act in 

those cases where systemic, structural errors serve to undermine the 

presumptions of fairness that normally attach to our criminal trials. 

As such, very few errors will fall within its ambit. The second prong 

of our test thus Aguards against errors that erode the integrity of the 

judicial process and undermine the fairness of the defendant=s trial.@

Herron, 215 Ill. 2d at 186. 

Relying on Herron, defendant argues that the error committed by 
-19-

the circuit court in this case eroded the integrity of the judicial 

process and undermined the fairness of his trial. He contends that he 

has satisfied his burden of persuasion because the error involved here 

is so serious that prejudice can be presumed. In other words, he 

argues that plain error occurred in this case pursuant to the second 

prong of our plain error rule. The court responds to this argument by 

noting Aeven constitutional errors can be forfeited [citation] if the 

error is not of such magnitude that it deprives the defendant of a fair 

trial.@ Slip op. at 9. Finding that defendant Ahas not shown that his 

presumption of innocence, ability to assist his counsel, or the dignity 

of the proceedings was compromised,@ the court concludes that while 

error occurred, the error did not result in fundamental unfairness. Slip 

op. at 10. I disagree. 

It has long been recognized that an accused should never be 

placed in restraints in the presence of the jury A >unless there is a 

showing of a manifest need for such restraints.= @ Boose, 66 Ill 2d at 

265-66 , quoting People v. Duran, 16 Cal. 3d 282, 290-91, 545 P.2d 

1322, 1327, 127 Cal. Rptr. 618, 623 (1976); see also Deck v. 

Missouri, 544 U.S. __, ___,161 L. Ed. 2d 953, 963, 125 S. Ct. 2007, 

2012 (2005) (acknowledging that Athe Fifth and Fourteenth 

Amendments prohibit the use of physical restraints visible to the jury 

absent a trial court determination, in the exercise of its discretion, that 

they are justified by a state interest specific to a particular trial@). This 

means that a defendant has the right to appear without restraints, 

unless such restraints are necessary to prevent escape, to protect the 

safety of those in the courtroom, and to maintain order during trial. 

Boose, 66 Ill. 2d at 266; Deck, 544 U.S. at __, 161 L. Ed. 3d at 962, 

125 S. Ct. at 2012. This determination is left to the discretion of the 

trial judge, who should select the type of restraint suitable in light of 

all of the circumstances. Boose, 66 Ill. 2d at 266. This court requires 

that, in such cases, the trial judge (i) allow a defendant to be heard on 

the question of restraint, (ii) state for the record the reasons for 

allowing a defendant to be placed in restraints, and (iii) make this 

determination outside of the presence of the jury. On appeal, such a 

decision will be reviewed for abuse of discretion. Boose, 66 Ill. 2d at 

267. 

Courts from all jurisdictions have recognized that the foregoing 

procedures are necessary in restraint cases because placing a 

defendant in restraints impacts on a defendant=s right to due process 
-20-

in several different ways. Shackles and gags visible to the jury Amight 

have a significant effect on the jury=s feelings about the defendant.@

Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90 S. Ct. 

1057, 1061 (1970). As such, the presumption of innocence that a 

defendant enjoys may be eroded. Courts have also found that 

restraints may restrict a defendant=s ability to assist counsel during 

the trial and offend the dignity of the judicial process. Deck, 544 U.S. 

at __, 161 L. Ed. 2d at 963-64, 125 S. Ct. at 2013. 

 This court has long acknowledged these very concerns in restraint 

cases. For example, in Boose, the defendant, a 15-year-old, was 

charged with murder. The juvenile court waived jurisdiction of the 

case and transferred it to the criminal division of the circuit court. 

Subsequent to the defendant=s indictment, the defendant successfully 

moved for a hearing to determine whether he was competent to stand 

trial. The defendant was brought to court wearing handcuffs which 

were threaded through shackles attached to a restraining belt wrapped 

around his waist. The defendant=s attorney moved that all of the 

restraints be removed whenever the jury was present. The trial judge 

denied the motion, stating that Adue to the nature of the charges 

against the defendant, I believe it would be better to have the 

shackles remain.@ See Boose, 66 Ill. 2d at 265. After the jury found 

the defendant competent to stand trial, his attorney moved for a new 

trial, arguing that the shackling of the defendant was not necessary. 

The trial judge denied the motion. Defendant then pled guilty to the 

charge of murder and was sentenced to a term of imprisonment. On 

appeal, the appellate court reversed, holding that the trial judge 

abused his discretion by ordering that the defendant appear shackled 

before the jury at the hearing on his competency. Boose, 66 Ill. 2d at 

264. 

Noting that an Aaccused should never be placed in restraints in the 

presence of the jury >unless there is a showing of a manifest need for 

such restraints,= @ this court affirmed the judgment of the appellate 

court. Boose, 66 Ill. 2d at 265-66, quoting People v. Duran, 16 Cal. 

3d 282, 290-91, 545 P.2d 1322, 1327, 127 Cal. Rptr. 618, 623 (1976). 

The court emphasized the three distinct due process concerns the 

question raised and then described the various factors that should be 

considered by the trial judge when determining whether such a 

manifest need exists. Boose, 66 Ill. 2d at 266-67. In so holding, the 

court specifically rejected the notion that the nature of the charges 
-21-

alone could justify the use of restraints. Boose, 66 Ill. 2d at 267-68. 

Rather, the decision to use restraints must be made on a case-by-case 

basis, and should not be the product of a general policy of imposing 

restraints on all criminal defendants. Boose, 66 Ill. 2d at 267-68. In 

rejecting the State=s contention that the need for such standards on the 

question of shackling at a competency hearing is not as great as it 

might be at the actual trial to determine guilt or innocence, this court 

noted that a fair trial, in all its stages, A >is a fundamental requirement 

in a criminal prosecution and when such requirement is not met, it 

amounts to a denial of due process of law= @ no matter A >how strong 

the evidence against an accused may be.= @ Boose, 66 Ill. 2d at 269, 

quoting People v. Finn, 17 Ill. 2d 614, 617 (1959). 

Two months later, in Staley, this court reaffirmed its teaching in 

Boose. In Staley, a juvenile defendant was found delinquent for 

severely beating a teacher in the detention home where the defendant 

had been previously placed. At his initial hearing before the juvenile 

court, the assistant Attorney General recommended that the defendant 

remain handcuffed. The trial judge followed the recommendation, 

stating that he did not want the behavior that occurred at the detention 

home to occur in the courtroom. At the ensuing adjudicatory hearing 

held on the State=s petition for delinquency, the defendant=s attorney 

asked that the handcuffs be removed. The trial judge denied the 

motion, and ultimately found the defendant delinquent. On appeal, 

the appellate court reversed and remanded the matter for a new 

adjudicatory hearing because the trial judge erred in requiring the 

defendant to appear at the adjudicatory hearing in handcuffs. Staley, 

67 Ill. 2d at 35-36. 

In affirming the appellate court=s judgment, this court noted, once 

again, the three distinct trial rights that restraints negatively impact, 

i.e., the presumption of innocence, the ability to assist in the defense, 

and the dignity of the judicial process. This court rejected the State=s 

contention that, because the adjudicatory hearing took place before a 

judge and not a jury, no error occurred. Prejudice to the jury, the 

court noted, was not the only reason why shackling had been 

disapproved: 

AIn the absence of exceptional circumstances, an accused has 

the right to stand trial >with the appearance, dignity, and selfrespect of a free and innocent man.= [Citation.] It jeopardizes 
-22-

the presumption=s value and protection and demeans our 

justice for an accused without clear cause to be required to 

stand in a courtroom in manacles or other restraints while he 

is being judged.@ Staley, 67 Ill. 2d at 37. 

The court emphasized that in the absence of a showing of manifest 

need, Awhich must be established clearly on the record,@ an accused 

Acannot be tried in shackles whether there is to be a bench trial or a 

trial by jury.@ Staley, 67 Ill. 2d at 38. The court did not engage in any 

type of harmless error analysis, despite the fact that the utility of such 

an inquiry was raised in the dissent. See Staley, 67 Ill. 2d at 41-42 

(Ryan, J., dissenting) (arguing that defendant Ashould be required to 

demonstrate that he has in some manner suffered prejudice by being 

handcuffed during the trial@). 

In examining the holdings in both Boose and Staley, it becomes 

clear that the court was concerned with more than the effect that 

shackles would have on the fact finder=s ability to adjudicate guilt in 

light of a defendant=s right to the presumption of innocence. Both 

cases identify other trial rights that have the potential to be negatively 

impacted by the unjustified use of restraints, namely, the defendant=s 

right to participate and assist in his defense and the right to a 

dignified trial proceeding. The importance of the latter right, the right 

to a dignified trial proceeding, was certainly at the center of this 

court=s decision in Staley, where the court ordered a new trial despite 

the fact that the adjudicatory proceeding in question was tried by a 

judge and not a jury and where the court chose not to apply a 

harmless-error analysis to the case. Thus, the court in Staley

considered the error to be so egregious that actual prejudice need not 

be shown and that it was of no import if the defendant was shackled 

in front of a jury or a judge. 

Since our decision in Staley, this court has not spoken with clarity 

with respect to what happens if a defendant raises the issue of unjust 

restraint on appeal without properly preserving it in the trial court. 

For example, in People v. Hyche, 77 Ill. 2d 229 (1979), the defendant 

claimed that his conviction must be reversed because he appeared 

before the venire in handcuffs on the first day of jury selection. This 

court held that defendant Awaived any error by failing to object to his 

appearance in handcuffs.@ Hyche, 77 Ill. 2d at 241. In so holding, this 

court found that the United States Supreme Court=s opinion in Estelle 
-23-

v. Williams, 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976), 

provided guidance on the question. In Estelle, the defendant appeared 

at trial in prison garb without objection. The Supreme Court held that 

the State cannot, consistent with the fourteenth amendment, compel 

an accused to stand trial before a jury while dressed in identifiable 

prison garb, however, the defendant=s failure to raise an objection Ais 

sufficient to negate the presence of compulsion necessary to establish 

a constitutional violation.@ Hyche, 77 Ill. 2d at 241. This court found 

that a similar conclusion was justified in Hyche Asince similar 

considerations involving a defendant=s right to the presumption of 

innocence are implicated when the defendant appears before the jury 

in handcuffs.@ Hyche, 77 Ill. 2d at 241. The court also rejected 

defendant=s contention that Staley and Boose mandated a different 

result: A[Those cases] are distinguishable in that the defendants there, 

unlike the defendant here, were improperly compelled to appear in 

handcuffs over objection.@ Hyche, 77 Ill. 2d at 241. 

 In contrast to Hyche, this court in People v. Buss, 187 Ill. 2d 144 

(1999), declined to hold a shackling claim waived and, instead, 

elected to address the issue on the merits. In so doing, the court cited 

with approval People v. Bennett, 281 Ill. App. 3d 814 (1996), which 

found plain error existed when a defendant did not properly preserve 

the issue of unnecessary shackling. In Bennett, the defendant, like 

defendant here, asked that his restraints (shackles) be removed, and, 

just like defendant here, did not include the issue in his post-trial 

motion. The appellate court held that despite the defendant=s failure 

to properly preserve the issue, plain error allowed for the court to 

address the issue and provide relief. Bennett, 281 Ill. App. 3d at 823-

25, 

In my view, the value of Hyche to today=s discussion is limited for 

several reasons. First, the case dealt with a question of pretrial 

restraint as opposed the present case, which concerns a defendant 

who was restrained throughout the entirety of his adjudicatory 

proceeding. Specifically, the defendant in Hyche appeared in a single 

handcuff before members of the venire on the first day of jury 

selection. It is unclear from the court=s opinion in Hyche how many of 

the venire members who saw the defendant so restrained ultimately 

served on the jury, as the opinion indicates the jury was not selected 

in a single day. More importantly, however, Hyche is inconsistent 

with the principles announced in Boose and Staley. In contrast to 
-24-

those cases, the Hyche court focused on only one of the three trial 

rights previously identified in Staley and Boose as being the focus of 

the restraint issue, i.e., the presumption of innocence, and failed to 

mention the other two trial rights, the ability to assist and participate 

in the defense and the right to dignified proceedings. For this reason, 

the Hyche court=s observation that Estelle provided guidance to the 

question missed the mark. As I noted previously, Estelle addressed 

the propriety of appearing before a jury in prison garb without 

objection. While being seen by the jury in prison garb might well 

devalue the presumption of innocence, prison attire is not the 

equivalent of physical restraints. Unlike manacles, prison clothes do 

not restrict movement such that the ability to assist in the defense is 

compromised. Prison clothes also do not undermine the dignity of the 

courtroom in the same way that the use of shackles has traditionally 

been found to do. The United States Supreme Court has 

acknowledged the deep-rooted, historical aversion the judiciary has 

long had toward trying a criminal defendant in restraints: 

AThe courtroom=s formal dignity, which includes the 

respectful treatment of defendants, reflects the importance of 

the matter at issue, guilt or innocence, and the gravity with 

which Americans consider any deprivation of an individual=s 

liberty through criminal punishment. And it reflects a 

seriousness of purpose that helps to explain the judicial 

system=s power to inspire the confidence and to affect the 

behavior of a general public whose demands for justice our 

courts seek to serve. The routine use of shackles in the 

presence of juries would undermine these symbolic yet 

concrete objectives. As this Court has said, the use of 

shackles at trial >affront[s]= the >dignity and decorum of 

judicial proceedings that the judge is seeking to uphold.=

Allen, supra, at 344; see also Trial of Christopher Layer, 16 

How. St. Tr., at 99 (statement of Mr. Hungerford) (>[T]o have 

a man plead for his life= in shackles before >a court of justice, 

the highest in the kingdom for criminal matters, where the 

king himself is supposed to be personally present= undermines 

the >dignity of the Court).= @ Deck v. Missouri, 544 U.S. at __, 

161 L. Ed. 2d at 964, 125 S. Ct. at 2013. 

These concerns clearly underscore the critical differences between 

prison garb and physical restraints. For this reason, Hyche=s reliance 
-25-

on Estelle is not persuasive as the case is not truly relevant to the 

question presented in Hyche. Finally, the court in Hyche did not 

address plain error in any way. 

This court=s more recent opinion in Buss certainly does not follow 

the analysis set forth in Hyche. In Buss, as I noted previously, we 

rejected the defendant=s claim of improper shackling, but in so doing, 

we eschewed the State=s claims of waiver and decided the question on 

its merits. Our opinion did not cite to Hyche, but instead cited to an 

appellate court decision which found plain error in the unjustified use 

of restraints at trial even though the defendant had failed to include 

the issue in his post-trial motion. 

After reviewing our precedents, I find the Staley court=s refusal to 

subject the error to a harmless-error analysis to be important to 

today=s discussion regarding the second prong of the plain error rule. 

In essence, the court=s refusal to predicate a reversal on actual 

prejudice in Staley reveals that the court was more concerned with 

the error=s ramifications on the proceedings as a whole. As I noted 

previously, in Staley, the defendant was not tried by a jury, but by a 

judge. Surely a judge understands the presumption of innocence and 

would not equate the presence of restraints on a defendant with that 

defendant=s guilt of the charged crime. Yet, this court still reversed 

despite this fact and without a showing of prejudice because unjust 

shackling jeopardized more than the value and protection of the 

presumption of innocence. It also Ademeans our justice for an accused 

without clear cause to be required to stand in a courtroom in 

manacles or other restraints while he is being judged.@ (Emphasis 

added.) Staley, 67 Ill. 2d at 37. Thus, the error did not just affect the 

defendant=s substantial rights, it seriously affected the fairness, 

integrity and public reputation of the judicial proceedings and it was 

the systemic effect on the trial proceedings as a whole that warranted 

the new trial in Staley. If this is so, then why are not these same 

concerns, which clearly are present in all restraint-without-manifestcause cases, not enough to satisfy the second prong of our plain error 

rule? As this court noted in People v. Blue, 189 Ill. 2d 99, 138 (2000), 

Aprejudice to a defendant=s case is not the sole concern that drives our 

analysis of defendant=s appeal.@ We further recognized in Blue that 

when a defendant=s right to a fair trial has been denied, Athis court 

must take corrective action so that we may preserve the integrity of 

the judicial process.@ Blue, 189 Ill. 2d at 138. In so doing, we pointed 
-26-

specifically to the second prong of the plain error rule: 

ATo determine whether defendant=s right to a fair trial has 

been compromised, we employ the same test that this court 

uses whenever it applies the second prong of the plain error 

test. 134 Ill. 2d R. 615(a). We ask whether a substantial right 

has been affected to such a degree that we cannot confidently 

state that defendant=s trial was fundamentally fair. *** 

*** [W]hen an error arises at trial that is of such gravity 

that it threatens the very integrity of the judicial process, the 

court must act to correct the error, so that the fairness and the 

reputation of the process may be preserved and protected.@

Blue, 189 Ill. 2d at 138. 

I note that these concerns echo the United States Supreme Court=s 

observations about the importance to the criminal justice system of 

maintaining dignified proceedings in which defendants are treated 

respectfully. Contrary to the court=s assertions, it today is not 

Afollow[ing] the strict application of [the plain error] doctrine as 

recently set forth in Herron@ (slip op. at 15), rather it is corrupting the 

second prong of the rule by requiring defendant to establish that he 

was specifically prejudiced even though the rule itself does not 

require a showing of prejudice. 

In light of the above, it is unclear to me how this defendant=s 

failure to raise this matter in the posttrial motion transforms what 

would have been a due process violation not subject to a harmless 

error analysis into an error that now requires a showing of actual 

prejudice in order to warrant relief. To the extent that the court finds 

Estelle v. Williams relevant to this issue (slip op. at 10). I strongly 

disagree. As I discussed above, in Estelle, the issue before the 

Supreme Court was whether an accused who is compelled to wear 

identifiable prison clothing at his trial by a jury is denied due process 

or equal protection of the laws. In addressing this issue, the Court 

acknowledged that the Aparticular evil@ in these types of cases is 

Acompelling a defendant, against his will, to be tried in jail attire.@

Estelle, 425 U.S. at 507, 48 L. Ed. 2d at 133, 96 S. Ct. at 1694-95. 

However, the Court noted that case law showed that it was Anot an 

uncommon defense tactic to produce the defendant in jail clothes in 

the hope of eliciting sympathy from the jury@ especially in Texas, 

where the defendant had been tried. Estelle, 425 U.S. at 508, 48 L. 
-27-

Ed. 2d at 133, 96 S. Ct. at 1695. For this reason, the Court found that 

it was necessary for a defendant to register an objection to the jail 

attire before the trial judge so as to show the lack of compulsion. 

Unlike the Court in Estelle, I can point to no case law which reveals 

that it is a common defense tactic to produce a defendant in restraints 

in the hope of eliciting sympathy from the jury. I further note that the 

Court in Estelle in no way likened appearing before the jury in jail 

attire with the use of physical restraints. In fact, the Court pointed out 

that the decision to have a defendant appear in jail attire is one that 

belongs to defense counsel, not the trial judge.2

 In contrast, case law 

makes clear that the decision to use restraints at trial lies solely in the 

discretion of the trial judge. A careful reading of Estelle thus 

demonstrates that it provides little guidance to the question presented 

 

 2The court Areject[s] the dissent=s attempt@ (slip op. at 11) to 

distinguish Estelle. The court=s rejection is made without any real 

discussion of the salient points of the United States Supreme Court=s 

analysis as it fails to discuss the importance the invited-error doctrine 

had on the United State Supreme Court=s analysis in refusing to 

excuse the defendant=s procedural default. 
-28-

in the case at bar.3

 

 3I would further note that in Estelle there was no objection made at all 

during the proceedings, which strengthened the Court=s conclusion that the 

defendant chose to wear the jail attire as part of some trial strategy. In this 

case, it is clear that an objection was made to the wearing of the stun belt by 

defense counsel, who indicated that he preferred that defendant not wear the 

belt. The record indicates that counsel=s request was denied by both a court 

officer and the trial judge, who stated that the device would remain on 

defendant. This type of exchange made on the record is enough in my view 

to establish that defendant was Acompelled@ to wear this restraint during this 

trial. Thus, I believe this record sufficiently establishes the element of 

Acompulsion@ that the United States Supreme Court found wanting in 

Estelle. 

I believe that in order to determine whether the second prong of 

the plain error rule is satisfied in this case, it is essential for us to 

evaluate the general characteristics of a stun belt, especially in this 

case because it appears from the trial judge=s remarks that he believed 

that such a restraint was preferable to handcuffs or shackles. I believe 

we must assess what kind of impact a restraint such as an electronic 

stun belt has on a defendant=s trial rights, particularly those rights that 

have been traditionally recognized as having the most potential to be 

affected by the use of restraints at trial (i.e., the presumption of 

innocence, the right to consult with counsel, and the maintenance of 

dignity in the judicial process), and whether that impact results in 

fundamental unfairness or causes a severe threat to the fairness of the 

trial such that the second prong of our plain error rule is implicated. 

To answer these questions, I look to the same opinions from other 
-29-

jurisdictions where this issue has been previously addressed that my 

colleagues cite in their opinion. 

With respect to the presumption of innocence, courts have 

recognized that they must Aguard against practices that unnecessarily 

mark the defendant as a dangerous character or suggest that his guilt 

is a foregone conclusion.@ Wrinkles v. State, 749 N.E.2d 1179, 1193 

(Ind. 2001) (and cases cited therein). In this case, the State claims 

that the electronic stun belt was not visible to the jury. The record, 

however, does not reflect that the belt was invisible. Indeed, the belt 

is described in the record as a Afairly noticeable object.@

4

 The fact that 

the belt is, in fact, somewhat noticeable has been a source of concern 

to the Eleventh Circuit Court of Appeals, which has stated that 

Aif the stun belt protrudes from the defendant=s back to a 

noticeable degree, it is at least possible that it may be viewed 

by the jury. If seen, the belt >may be even more prejudicial 

than handcuffs or leg irons because it implies that unique 

force is necessary to control the defendant.= [Citation.]@

Durham, 287 F.3d at 1305. 

Moreover, the record here establishes that the bulge from the belt was 

noticeable enough to cause the trial judge to break from the usual trial 

protocol and have defendant preseated on the witness stand outside 

the presence of the jury. Thus, the use of the stun belt in this case 

necessitated the trial judge to treat defendant, upon his testifying, 

differently from the other witnesses who testified for the State at trial. 

Police officers Breen, Reid, Jensen, and Proschaska, in addition to 

auto yard owner Bill Clemmons, all walked up to the witness stand 

and were sworn in as witnesses in the presence of the jury, as is 

usually done in all criminal cases. Such things may mean little to 

those of us trained in the law, but jurors are not so trained and may 

well attach undue significance to such discrepancies. The disparate 

treatment of defendant from other witnesses who are not on trial 

 

 4It appears that electronic stun belts are not undetectable or invisible. In 

United States v. Durham, 287 F.2d 1297, 1305 (11th Cir. 2002), the court 

noted that the Abelt protrudes some three inches from the wearer=s back.@ In 

State v. Flieger, 91 Wash. App. 236, 242, 955 P.2d 872, 874 (1998), the 

electronic restraining device in use was so noticeable that it piqued jurors=

curiosity about what the device was. 
-30-

Amight have a significant effect on the jury=s feelings about the 

defendant@ (see Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 

359, 90 S. Ct. 1057, 1061 (1970)) and may cause jurors to believe 

that the difference in treatment is somehow related to defendant=s 

status as a defendant. Thus, the Eleventh Circuit Court of Appeals=

acknowledgment, with respect to this facet of the due process inquiry, 

that A[t]he use of a stun belt as a security device undoubtedly raises 

some concern about possible prejudice to the defendant, and this is a 

concern that needs to be considered before the device is imposed on a 

defendant@ (Durham, 287 F.3d at 1305) rings especially true in this 

case.5

 

 5The court accuses me of speculating about the effect that this 

discrepancy had on the jury. I note that the court indulges in speculation 

itself when it states that the discrepancy did not affect the jury. This misses 

the point. One should not have to resort to speculation to appreciate that 

what occurred at trial raised the danger of prejudice, which in restraint 

cases, is what courts are supposed to be guarding against. 

Notwithstanding the above, the courts that have addressed this 

issue are more concerned with the electronic stun belt=s potential to 

Adisrupt a different set of a defendant=s constitutionally guaranteed 

rights.@ Durham, 287 F.3d at 1305; see also People v. Mar, 28 Cal. 

4th 1201,1227, 52 P.3d 95, 112, 124 Cal. Rptr. 2d 161, 181 (2002) 

(acknowledging that the use of an electronic stun belt posed a 

significant risk of impairing a defendant=s ability to participate and 

assist in his or her defense); Wrinkles, 749 N.E.2d at 1194 (noting 

that the stun belt, even if not activated, has the Achilling effect@ of 

Acompromising the defense@). In order to adequately appreciate the 

concerns raised by these courts with respect to this set of rights, it is 

necessary to understand how the electronic stun belt works. 
-31-

In his brief, defendant reiterates the appellate court=s finding that 

the belt worn by defendant was the same type of belt described in 

another case from the Third District of our appellate court. According 

to defendant, the belt, when activated, delivers a 50,000 volt shock to 

the wearer which lasts for approximately eight seconds. The shock 

would knock the wearer to the ground and would incapacitate the 

wearer for 45 minutes. At oral argument, however, the State 

maintained that defendant could not point to the description in the 

Martinez case to argue against the use of the belt in his own case. I 

find the State=s argument particularly unpersuasive since the State 

does not deny defendant=s description of the belt nor does it attempt 

to otherwise enlighten this court about the belt in any meaningful 

way. The State, in its brief, does not once describe the device used in 

this case, yet argues nonetheless that its use at this trial should not be 

considered prejudicial in any way. The State=s amicus, the sheriff of 

Will County, represented by the State=s Attorney of Will County, 

speaks of his interest in Apreserving the ability to use a stun belt as a 

security measure at trial,@ but tells us little about the characteristics of 

the restraining device he advocates. The lack of such information 

from the sheriff is even more troubling since the record makes clear it 

was the Will County sheriff who insisted on the use of the electronic 

stun belt in this case.6

 

 6The record reveals that when defendant=s counsel raised the issue of 

removing the belt, the first person to respond was the court officer, who 

stated ANo@ before the trial judge could even speak. The sheriff=s position on 

electronic stun belts was discussed in People v. Martinez, 347 Ill. App. 3d 

1001 (2004), and I take judicial notice of the fact of the following, taken 

from the appellate court=s decision in that case: 

AThe [trial] court added that it would not >tell the Sheriff how to 

run his jail.= The judge elaborated: >[Jail officials] tell me now that 

it is standard operating procedure, even if it=s a [sic] 80-year-old 

lady who is in custody with the cuffs off and going to trial on a 

Class 4 Felony, it=s [the stun belt] worn in court now. And I am 

not going to change the Sheriff=s Department=s policy.= @ Martinez, 

347 Ill. App. 3d at 1003. 

I point out that the trial judge in Martinez was the same trial judge who 

presided over defendant=s trial in this case. I note that the court, in today=s 

opinion, refers to other cases arising from the Third District, and Will 

County in particular. Thus, it appears that the sheriff of Will County has 
-32-

In any event, descriptions of the electronic belt can be readily 

found in opinions rendered in courts which have closely examined 

this issue. The following description is fairly representative: 

AAs the Court of Appeal explained: >Stun belts are used to 

guard against escape and to ensure courtroom safety. This 

device, manufactured by Stun-Tech, is known as the Remote 

Electronically Activated Control Technology (REACT) belt. 

The type of stun belt which is used while a prisoner is in the 

courtroom consists of four-inch-wide elastic band, which is 

worn underneath the prisoner=s clothing. This band wraps 

around the prisoner=s waist and is secured by a Velcro 

fastener. The belt is powered by two 9-volt batteries 

connected to prongs which are attached to the wearer over the 

left kidney region. *** 

 

established a general, blanket policy of restraining all felony prisoners with 

electronic stun belts without regard for particularized circumstances and 

clearly not on the case-by-case basis that this court required for imposition 

of restraints in Boose and Staley. The sheriff=s actions in this regard appear 

to run afoul of the rule that it is the trial judge who traditionally exercises 

his or her discretion in maintaining order in the trial courtroom. 

>The stun belt will deliver an eight-second, 50,000 volt 

electric shock if activated by a remote transmitter which is 

controlled by an attending officer. The shock contains enough 

amperage to immobilize a person temporarily and cause 

muscular weakness for approximately 30-45 minutes. The 

wearer is generally knocked to the ground by the shock and 

shakes uncontrollably. Activation may also cause immediate 

and uncontrolled defecation and urination, and the belt=s 

metal prongs may leave welts on the wearer=s skin requiring 

as long as six months to heal. An electrical jolt of this 

magnitude causes temporary debilitating pain and may cause 

some wearers to suffer heartbeat irregularities or seizures.=
-33-

[Citation.]@ Mar, 28 Cal. 4th at 1214-15, 52 P.3d at 103, 124 

Cal. Rptr. 2d at 171. 

See also Wrinkles, 749 N.E.2d at 1193 (reciting same general 

description). Given these characteristics, a number of courts have 

been concerned about the effect such devices can have on a 

defendant=s ability to assist counsel and participate in the defense. For 

example, the Eleventh Circuit Court of Appeals was particularly 

troubled about the adverse impact the device can have on a 

defendant=s sixth amendment and due process rights to be present at 

trial and participate in his defense: 

AWearing a stun belt is a considerable impediment to a 

defendant=s ability to follow the proceedings and take an 

active interest in the presentation of his case. It is reasonable 

to assume that much of a defendant=s focus and attention 

when wearing one of these devices is occupied by anxiety 

over the possible triggering of the belt. A defendant is likely 

to concentrate on doing everything he can to prevent the belt 

from being activated, and is thus less likely to participate 

fully in his defense at trial. We have noted that the presence 

of shackles may >significantly affect the trial strategy [the 

defendant] chooses to follow.= [Citation.] A stun belt is far 

more likely to have an impact on a defendant=s trial strategy 

than are shackles, as a belt may interfere with the defendant=s 

ability to direct his own defense.@ Durham, 287 F.3d at 1306. 

Similarly, the Supreme Court of California has acknowledged that Ait 

is by no means clear that the use of a stun belt upon any particular 

defendant will, as a general matter, be less debilitating or detrimental 

to the defendant=s ability fully to participate in his or her defense@

than would be the use of the more traditional methods of restraint, 

such as handcuffs or shackles. Mar, 28 Cal. 4th at 1226, 52 P.3d at 

111, 124 Cal. Rptr. 2d at 181. On the contrary, the court warned that 

A[t]he psychological effect of wearing a device that at any 

moment can be activated remotely by a law enforcement 

officer (intentionally or accidentally), and that will result in a 

severe electrical shock that promises to be both injurious and 

humiliating, may vary greatly depending upon the personality 

and attitude of the particular defendant, and in many instances 

may impair the defendant=s ability to think clearly, 
-34-

concentrate on the testimony, communicate with counsel at 

trial, and maintain a positive demeanor before the jury.@ Mar, 

28 Cal. 4th at 1226, 52 P.3d at 111, 124 Cal. Rptr. 2d at 181. 

In this vein, the court was also deeply troubled by claims made in 

promotional literature from manufacturers of the belts that touted the 

belt=s ability Ato provide law enforcement with >total psychological 

supremacy ... of potentially troubling prisoners.= @ Mar, 28 Cal. 4th at 

1226, 52 P. 3d at 111, 124 Cal. Rptr. 2d at 181. Other courts have 

voiced similar concerns. See Hawkins v. Comparet-Cassani, 33 F. 

Supp. 2d 1244, 1262 (C.D. Cal. 1999) (stating that Aa defendant may 

be reluctant to object or question the logic of a rulingBmatters that a 

defendant has every right to do@); Wrinkles, 749 N.E.2d at 1195-96 

(acknowledging that psychological impact of belt on a defendant can 

compromise the defense). 

Finally, I note that courts have found that stun belts possess Athe 

potential to be highly detrimental to the dignified administration of 

criminal justice.@ Durham, 287 F.3d at 1306. For example, the 

California Supreme Court acknowledged a Adisturbing number of 

accidental activations@ of stun belts across the country. The court 

specifically pointed to accidental activations recorded in judicial 

opinions from Idaho, Nevada, Ohio, and California. Mar, 28 Cal. 4th 

at 1228, 52 P.3d at 112-13, 124 Cal. Rptr. 2d at 182-83 (collecting 

cases).7

 In the same opinion, the court expressed concern over the 

fact that the device can also be distracting, specifically referencing a 

quote from a stun belt use trainer that, Aat trials, people notice that the 

defendant will be watching whoever has the monitor.@ Mar, 28 Cal. 

4th at 1226-72, 52 P.3d at 111, 124 Cal. Rptr. 2d at 181. These 

examples demonstrate how this kind of device can be detrimental to 

dignified proceedings in a criminal trial. 

In light of the foregoing, I believe that stun belts plainly raise 

many of the same constitutional concerns that this court recognized in 

 

 7During the State=s presentation at oral argument, Justice Garman asked 

whether actions on the part of the defendant can Atrigger@ the belt. The 

assistant Attorney General answered that only the Adeputy@ holds the button, 

implying that there could not be any type of accidental activation. These 

recorded instances of accidental activation in other jurisdictions 

demonstrate that accidents do in fact occur. 
-35-

Boose and Staley, though in somewhat different ways. Although a 

stun belt may be less visible than devices such as handcuffs or 

shackles, the belt imposes a more substantial burden on the ability of 

a defendant to participate in his own defense and to confer with 

counsel during trial than do other devices. The stun belt also poses a 

serious threat to courtroom decorum and dignity. Because of the 

importance of these rights to our criminal justice system, the 

unjustified use of an electronic stun belt should result in plain error. 

Given the psychological effects the stun belt has on its wearer, as 

identified by courts in other jurisdictions, I am unwilling to hold, as 

my colleagues do, that because of defendant=s procedural default, 

defendant must establish prejudice with specific reference to the 

record in order to warrant relief on appeal. Such a holding is 

inconsistent with Boose and Staley, which do not require that specific 

prejudice be shown. 

Moreover, I am puzzled by the court=s holding that defendant here 

Ahas not shown that his presumption of innocence, ability to assist 

counsel, or the dignity of the proceedings was compromised.@ Slip 

op. at 10. How exactly is a defendant to show that his presumption of 

innocence was compromised? What type of record evidence would 

support a finding of a compromised presumption of innocence? It is 

ironic that it is I, writing in my dissent, who has demonstrated with 

actual citation to the record how the use of the stun belt in this case 

affected the normal procedure of this criminal trial, where the record 

reveals that defendant was preseated in the witness box outside the 

presence of the jury. My colleagues= response to the very type of 

record evidence that they demand throughout their opinion is that I 

am speculating about what kind of effect that had on the jury. Slip op. 

at 14. I sincerely hope that my colleagues are not insinuating that an 

activation of the stun belt must occur before a defendant=s 

presumption of innocence will be deemed Acompromised.@ The court 

intimates that, because defendant Awas before the jury for two days@

with Ano objection@ and without Aany apparent difficulty consulting 

with his counsel,@ all was fine. As a reviewing court, we are left with 

a cold transcript of the proceedings from which we are unable to 

glean nuances in tone, demeanor, and appearance. That, of course, is 

why we defer to findings made by the trier of fact who, having been 

present at the trial, is in a better position to assess these particular 

things. For these reasons, I am unwilling to assume, as my colleagues 
-36-

appear to, that because the record does not reflect any overt signs of 

nervousness or distress on defendant=s part over the use of the belt, 

defendant did not experience any anxiety or suffer any prejudice. All 

people react to stress differently. The record may not reflect anxiety 

on a defendant=s part because he or she may not manifest anxiety in 

an outwardly discernable manner, e.g., nervous twitching, stuttering, 

shaking, and the like. Instead, a defendant may be the type of 

individual who internalizes anxiety in ways that are not visible to 

observers. Similarly, a defendant=s lack of outcry to the trial judge or 

his counsel does not necessarily establish a comfort level with the 

stun belt or acquiescence in its use. Rather, such a defendant may be 

afraid of saying anything to anyone, lest an objection lead to 

activation of the stun belt. 

The court=s resolution of this matter reveals that it has overlooked 

the most glaring problem that occurs when a stun belt is placed upon 

a criminal defendant without a showing a manifest need. A defendant 

has the right to be free from restraint at trial because, as courts have 

long recognized, restraints unduly erode the trial protections afforded 

to a defendant by the Constitution. It is only when a defendant 

misbehaves or poses a great danger through past behavior that those 

trial protections are rightfully diminished. Such a defendant=s trial 

protections are less, but that is constitutionally permissible because 

just cause has been shown. The unjustified imposition upon a 

criminal defendant of a remote-controlled electronic restraintBa 

device which is designed to give Apsychological supremacy@ over its 

wearer to the person who holds its activation buttonBposes a Asevere 

threat@ to the fairness of the proceedings. This results in a benefit to 

the prosecution because the defendant unjustifiably enjoys lesser trial 

protections through no fault of his own. It is the prosecution, not the 

defense, which benefits when a defendant, without just cause, isBfor a 

lack of better descriptionBpsychologically neutralized, e.g., his 

attention focused on the stun belt and not the trial, his demeanor 

affected by trying not to be shocked, and the like. Such a defendant 

stands at a disadvantage at trial, and the proceedings become tainted. 

This is precisely the kind of error that the second prong of the plainerror rule seeks to guard against. It is the type of error that Aerode[s] 

the integrity of the judicial process and undermine[s] the fairness of 

the defendant=s trial.@ See Herron, 215 Ill. 2d at 186. For these 

reasons, I believe that the second prong of the plain-error rule has 
-37-

been satisfied in this case. 

Frankly and with all due respect, I have difficulty understanding 

the court=s treatment of defendant=s argument in this case. The court 

stresses often in its opinion that it is not Aaddress[ing] the propriety of 

using stun belts at a criminal trial@ and that the Ause of such restraints 

in Illinois courts *** is not raised in this case.@ Slip op. at 10. 

However, that issue is clearly and necessarily raised in this case. 

Defendant argues that the use of electronic stun belts is so inherently 

prejudicial that it served to undermine the basic trial rights he has 

been afforded under our Constitution. On some level, the court must 

be concerned with the use of electronic stun belts because it does 

indeed hold that to restrain a defendant with such a device without 

first determining whether the Boose test is met violates due process. 

The court holds that Boose and Staley apply with equal force in 

electronic stun belt restraint cases. I point out that Boose and Staley

allow for restraints to be used in cases where manifest need has been 

established on the record. Therefore, if Boose and Staley apply with 

equal force to stun belt restraints, as the court holds, then, ipso facto, 

electronic stun belts can be used in Illinois courtrooms consistent 

with the teachings of Boose and Staley. Given this ruling, I simply do 

not understand why the court states that today=s opinion does not 

address the use of stun belts at a criminal trial. I have similar 

difficulties understanding the court=s holding that putting a defendant 

in a restraint like the one at issue here, without first establishing just 

cause, constitutes a violation of due process. Why does the court rule 

in this manner? According to our opinions in Boose and Staley, the 

main concern the courts had was on the magnitude of the error to the 

proceedings on a whole and not on any actual prejudice to a 

defendant. It was that concern which prompted those courts to hold 

that the error violated due process. None of the defendants in Boose

or Staley pointed to specific instances in the record where the 

presumption of innocence, the right to participate and assist at trial 

and the right to a dignified proceeding were actually compromised. 

Instead, it was this court that was concerned with the effect the 

unjustified use of the restraints would have on the integrity of the 

judicial proceedings because the restraints had the potential to 

compromise those important trial rights. Nevertheless, today=s 

opinion, while stating that a due process violation occurred here, 

demands actual proof of an impact on those rights even though, in our 
-38-

earlier cases, the due process violation was not predicated upon a 

finding of actual prejudice. Defendant=s procedural default does not 

lessen the due process violation since that violation, under Boose and 

Staley, is not dependent on actual prejudice.8

 

 8

The court=s treatment of this issue indicates that but for counsel=s failure 

to include the matter in defendant=s posttrial motion, defendant=s challenge 

to the use of the stun belt would have been resolved differently. See slip op. 

at 16 (noting Boose, Staley, Martinez, and Deck all present a Adifferent 

factual situation which allows for a per se finding of reversible error which 

is not applicable under the facts presented in this case@). In light of this, 

defendant may have a constitutional claim of ineffective assistance of trial 

counsel cognizable under our Post-Conviction Hearing Act.

The court=s opinion also appears to be inconsistent. At the outset 

of its analysis, the court states that although the trial court never 

referred to the Asecurity device@ as an Aelectronic stun belt,@ it, like 

the appellate court below, is Aconfident@ in its assessment that Ait was 

indeed that type of restraining device.@ Slip op. at 3. The court then 

states that its finding is Aespecially probable@ because in another 

recent Will County circuit court case, People v. Martinez, the State 

asked the appellate court to validate the AWill County Sheriff 

department=s >standard operating procedure of requiring all felony 

defendants to wear a stun belt while appearing in court.= @ Slip op. at 

3. The court also cites to other cases currently pending before this 

court involving the use of stun belts in Will County. Thus, it appears 

that, from that point of its opinion on, the court is operating under the 

assumption that electronic stun belts are at issue in this case. The 

court cites to a number of cases from outside of our jurisdiction 

which hold that electronic stun belts are restraining devices, the use 

of which is subject to the same restrictions as shackles. Slip op. at 5. 
-39-

The court further holds that, in this case, the trial court=s failure to 

follow the procedures set forth in Boose before ordering that 

defendant continue to wear an electronic stun belts constituted a due 

process violation. Slip op. at 7. Notwithstanding all of the above, the 

court faults me for my use of Ainformation outside the record and 

cases outside our jurisdiction to speculate as to the type and effect of 

the stun belt worn in this case and to proselytize for a ban on the use 

of stun belts in Illinois.@ Slip op. at 12. Clearly, the court has 

misapprehended my dissent as much as it has misapprehended the 

reasoning behind Boose and Staley. Nowhere in this dissent do I 

Aproselytize for a ban on the use of stun belts@ as the court 

erroneously charges. As stated below, I believe that stun belts can be 

used in our courtrooms at the discretion of our trial judges after 

application of the factors identified in Boose and additional factors 

associated with the unique nature of this particular restraining device. 

The court then states that Athere is nothing of record to show that the 

type of electronic device worn in the nonprecedential cases cited by 

the dissent are in any way similar to the device worn by defendant.@

Slip op. at 12. If the court is, in fact, concerned with this defendant=s 

lack of establishing on the record the specific type of electronic stun 

belt that is at issue in this case, then I do not understand why the 

court accepted the speculation of the appellate court that the security 

device was an electronic stun belt in the first place. Why does the 

court look to Anonprecedential@ Third District appellate court cases in 

order to determine the standard operating procedure of the Will 

County sheriff? Taking the court at its own word, I do not understand 

why the court takes note of the actions of the Will County sheriff in 

this case, but then does not take note of the actions of other Will 

County defendants. If the actions of the other Will County defendants 

are of no moment in this case, then the actions taken by the Will 

County sheriff in other cases should likewise be of no moment in this 

case. I do not understand the basis on which the court decides what 

facts outside the record can be relied upon in this case and what facts 

outside the record cannot be relied upon. I also have similar 

difficulties understanding why, if my colleagues are so troubled by 

the fact that the type of electronic restraint involved in this case is 

Anot even known,@ they would issue an opinion which establishes as 

precedent that electronic stun belts are devices that are the equivalent 

of physical restraints and must comply with Boose. How can the 
-40-

court rule that such a restraint is the equivalent of something else if 

the court does not take the time to understand how the device works 

and refuses to look to other opinions from other jurisdictions which 

have set forth this necessary information? In my view, it is 

appropriate and, indeed necessary, to look to other cases to 

understand what these devices are and how they work in order to 

address defendant=s argument that the use of these restraints 

compromised his trial such that the second prong of the plain error 

test is satisfied. The court=s criticism of my use of cases from outside 

the jurisdiction (some of which the court itself cites in the body of its 

opinion) in order to assess defendant=s plain error argument is simply 

not justified. 

III 

Despite its holding that a trial court must follow the procedures 

set forth in Boose before ordering that defendant continue to wear an 

electronic stun belt at trial and the failure to do so results in a due 

process violation, the court believes that its opinion does not have the 

effect of countenancing the continued use of stun belts in Will 

County or any other county in this state. See slip op. at 6. I do not 

believe that the court=s opinion will be read in the narrow manner it 

believes, especially when the unjustified use of the stun belt in this 

case is deemed inconsequential by a majority of this court. However, 

the use of such devices raises significant questions that generally 

have not been considered by trial courts when addressing the more 

traditional forms of trial restraints. Today=s opinion fails to consider 

these questions as well, despite its recognition that the Boose factors 

apply to stun belts. I note that the court does not acknowledge the 

potential health risks that are associated with the use of stun belts. 

The California Supreme Court has noted that 

Athe manufacturer of the REACT stun belt and regular 

users of the device apparently recognize that the stun belt 

poses special danger when utilized on persons with particular 

medical conditions, such as serious heart problems.@ Mar, 28 

Cal. 4th at 1229, 93 P.3d at 113, 124 Cal. Rptr. 2d at 183. 

The court also pointed to a statement from the assistant director of the 

Federal Bureau of Prisons, which instituted a policy not to use stun 

belts on (i) pregnant female inmates, (ii) inmates with heart disease, 
-41-

(iii) inmates with multiple sclerosis, (iv) inmates with muscular 

dystrophy, and (v) inmates who are epileptic. Mar, 28 Cal. 4th at 

1229, 93 P.3d at 113, 124 Cal. Rptr. 2d at 183. Based on these facts, 

the court warned Awhen the risk of accidental activation is 

considered, use of stun belt without adequate medical precautions is 

clearly unacceptable.@ Mar, 28 Cal. 4th at 1229, 93 P.3d at 113, 124 

Cal. Rptr. 2d at 183. I share these concerns. 

Finally, today=s opinion fails to acknowledge the importance of 

adequate training for those officers of the court who control the 

device at trial. This is especially necessary in view of the stun belt=s 

troubling potential for accidental activation. I believe that the trial 

court should make an inquiry concerning the amount of training the 

officer in charge of the activation button has received before allowing 

the device to be used in the courtroom. 

In light of the concerns regarding health risks and accidental 

activations, I agree with those courts that hold that Aif a stun belt is to 

be used to restrain a particular defendant, a court must subject that 

decision to careful scrutiny. This scrutiny should include addressing 

factual questions related to its operation, the exploration of 

alternative, less problematic methods of restraint, and a finding that 

the device is necessary in that particular case for a set of reasons that 

can be articulated on the record.@ Durham, 287 F.3d at 1309. See also 

Mar, 28 Cal. 4th at 1230, 52 P.3d at 113-14, 124 Cal. Rptr. 2d at 183-

84 (holding that trial court can approve use of stun belt only after 

traditional restraint factors are met, the belt is the least restrictive 

device that will serve the court=s security interest and only upon 

determination that the use of the belt is safe and appropriate under the 

particular circumstances). Consistent with today=s application of the 

Boose factors to cases involving electronic stun belt restraining 

devices, I would also require that the any trial judge who employs the 

use of electronic stun belt restraining devices in his courtroom make 

specific findings on the record with respect to the defendant=s medical 

history and the training given to the deputies before allowing such a 

method of restraint to be used. Given this position, I fail to see how 

the court can accuse of me of using this dissent Ato proselytize for a 

ban on the use of stun belts in Illinois.@ Slip op. at 12. 

IV 
-42-

As the foregoing demonstrates, I disagree strongly with the 

court=s treatment of this issue of first impression. The opinion 

demonstrates that a majority of the court fails to appreciate the 

significant and profound impact that this relatively new means of 

restraint has a defendant=s trial rights. I respectfully dissent. 

JUSTICES McMORROW and KILBRIDE join in this dissent.