Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | Email Matthew R. Leisten
Plea-Related Proffer Statements Remain Protected Under Rule 402(f)
In People v. Harvey, 2026 IL App (5th) 230623, the Fifth District Appellate Court affirmed a trial court’s ruling suppressing any statements made by the defendant in his proffer to police as substantive evidence because the statements were made during plea discussions and were protected under Supreme Court Rule 402(f).
In Harvey, the defendant was charged with first-degree murder under an accountability theory. 2026 IL App (5th) 230623 at ¶3. The state sent the defendant’s attorney an extensive letter outlining the state’s interest in entering into a proffer agreement. Paragraph number 4’s proposal stated that if the defendant testified contrary to his proffer, then the state could use the proffer statements as evidence in its case-in-chief or as rebuttal evidence. 2026 IL App (5th) 230623 at ¶5.
The defendant and his attorney signed the proffer letter. The defendant gave a highly incriminating proffer to the prosecutor and a detective with his attorney present. The proffer was not recorded. The defendant later terminated his attorney and was appointed a public defender. 2026 IL App (5th) 230623 at ¶¶7 – 8.
The public defender filed a motion to suppress the proffer because the statements were made in the course of plea negotiations under S.Ct. Rule 402(f) (neither plea discussions nor plea agreements can be used against a defendant). The motion argued that a paragraph in the proffer letter that precluded the defendant’s attorneys from arguing anything inconsistent with the undocumented statement was a complete waiver of his rights to plead not guilty, remain silent, or have a trial. The motion also argued that that the proffer letter was unconscionable and that the original attorney had improperly informed the defendant about the meeting of the letter. 2026 IL App (5th) 230623 at ¶9.
The trial court held a hearing during which the original attorney testified regarding his belief that the proffer was for the purposes of plea negotiations and to help the defendant get a better sentence. 2026 IL App (5th) 230623 at ¶¶10 – 11. The attorney also testified that he believed that the proffer could be used to impeach the defendant if he testified inconsistently with it. 2026 IL App (5th) 230623 at ¶53.
The trial court held that the proffer was part of the plea-bargaining process under Rule 402(f) and was inadmissible in the state’s case-in-chief but could be used as impeachment if he testified. The state appealed. 2026 IL App (5th) 230623 at ¶27.
On appeal, the appellate court stated that the Illinois Supreme Court had held in People v. Friedman, 79 Ill.2d 341, 403 N.E.2d 229, 235, 38 Ill.Dec. 141 (1980), that Rule 402(f) must be understood in the context of the reasonable expectations of the defendant at the time of the statement. The first test under Friedman is whether the accused exhibited a subjective expectation to negotiate a plea, and the second is whether the expectation was reasonable under the totality of the circumstances. If a defendant expressed a clear indication of intent to pursue plea negotiations, then a statement would be considered plea-related. 2026 IL App (5th) 230623 at ¶¶34 – 35.
The appellate court rejected the state’s argument that because the defendant did not testify at the suppression hearing, there was no way to know what his subjective expectations were because the defendant signed his name next to language in the proffer that read, “I nevertheless want to pursue negotiations with the St. Clair County State’s Attorney’s Office.” 2026 IL App (5th) 230623 at ¶38. Additionally, the defendant gave a highly incriminating proffer. Therefore, the trial court reasonably inferred that the defendant gave his proffer with the intent to plead guilty upon successful plea negotiations. Therefore, he had demonstrated a subjective expectation to negotiate a plea.
Next, the appellate court concluded that this expectation to plead guilty was reasonable because the state had initiated the proffer discussion through its letter to the original attorney and the letter stated that it was “a preliminary step to entering a plea and cooperation agreement.” 2026 IL App (5th) 230623 at ¶39. The attorney had also testified that he believed that defendant understood that if he did not accept the proffer’s terms, then there would not have been a favorable plea from the state. The defendant also gave a detailed explanation of his involvement in the shooting during the proffer and was encouraged by his attorney to be truthful. Therefore, it was objectively reasonable for him to believe that he was engaged in a plea-related discussion. 2026 IL App (5th) 230623 at ¶¶40 – 41.
The appellate court also rejected the state’s contention that the defendant waived his Rule 402(f) protections because the proffer was an enforceable contract that had explicitly listed under what circumstances the statements could be used. 2026 IL App (5th) 230623 at ¶46. However, the hearing testimony had established that the original attorney had assured the defendant that his proffer statements could be used only to impeach him. Because the attorney had misunderstood paragraph number 4, the defendant only made a voluntary waiver of his proffer statements for impeachment. 2026 IL App (5th) 230623 at ¶¶52 – 53.
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