dissenting:
Contrary to legislative mandate, the circuit court of Kankakee County has failed to adopt rules regulating the use of closed-circuit television or setting forth the type of proceeding that may be conducted by closed-circuit television. At issue is whether the circuit-court could require defendant to appear via closed-circuit television at arraignment and at jury waiver, without such rules. The majority holds that defendant’s appearances via closed-circuit television at arraignment and at jury waiver did not render those proceedings unconstitutional. Further, the majority holds that the circuit court’s failure to adopt rules regulating the use of closed-circuit television at these proceedings does not require reversal. Because such rules are required by our legislature as a safeguard to the defendant’s rights, I respectfully dissent.
BACKGROUND
Issues surrounding the use of closed-circuit television have arisen with some frequency in the Third District of the appellate court. See People v. Bouie, 327 Ill. App. 3d 243 (2001); People v. Caruth, 322 Ill. App. 3d 226 (2001); People v. Dixon, 319 Ill. App. 3d 881 (2001); People v. Mendez, 318 Ill. App. 3d 1145 (2001); People v. Speed, 318 Ill. App. 3d 910 (2001); People v. Guttendorf, 309 Ill. App. 3d 1044 (2000). The circuit courts of the Third District have allowed the use of closed-circuit television at arraignment (Bouie, 327 Ill. App. 3d 243; Caruth, 322 Ill. App. 3d 226; Dixon, 319 Ill. App. 3d 881; Mendez, 318 Ill. App. 3d 1145; Speed, 318 Ill. App. 3d 910), jury waiver (Dixon, 319 Ill. App. 3d 881), guilty plea hearings (Speed, 318 Ill. App. 3d 910; Guttendorf, 309 Ill. App. 3d 1044), and upon the return of the jury’s verdict (Mendez, 318 Ill. App. 3d 1145). In each instance, the defendant argued he had the right to be present at every critical stage of the criminal proceedings. In most instances, the defendant also argued that the circuit court erred in failing to promulgate rules governing the use of closed-circuit television. To date, the circuit courts of the Third District have failed to promulgate rules governing the use of closed-circuit television.
In the present case, the circuit court convicted defendant of unlawful possession of a controlled substance with the intent to deliver and unlawful possession of cannabis with the intent to deliver. Defendant appealed, claiming that the court erred in arraigning him and accepting his jury waiver when defendant was present only by closed-circuit television. Defendant also maintained that the court was not authorized to hold pretrial proceedings via closed-circuit television because the court had failed to adopt any rules regulating the type of proceedings to be conducted by closed-circuit television as required by statute. See 725 ILCS 5/106D — 1 (West 1998).
The appellate court noted that defendant had waived these issues by failing to object in the circuit court. 309 Ill. App. 3d at 1033. Further, the court determined that it was not appropriate to excuse the waiver because the evidence of guilt was not closely balanced and defendant was not deprived of substantial constitutional rights. 309 Ill. App. 3d at 1034-35. The court also noted that the record did not disclose whether the circuit court had complied with its statutory duty to promulgate rules concerning the use of closed-circuit television at pretrial proceedings. 309 Ill. App. 3d at 1035. In the absence of a complete record, the court assumed that the circuit court had adopted the necessary rules. 309 Ill. App. 3d at 1036. The court affirmed defendant’s conviction. 309 Ill. App. 3d at 1036.
This court allowed defendant’s petition for leave to appeal to consider the propriety of the use of closed-circuit television at arraignment and jury waiver.
ANALYSIS
In this court, the State notes that defendant did not object to the appearances via closed-circuit television. Further, defendant did not allege error in his post-trial motion. Accordingly, the State argues that defendant has waived any objection to the use of closed-circuit television. Additionally, the State maintains that any alleged error did not impact a substantial constitutional right. Defendant has not shown that he suffered any prejudice in the use of closed-circuit television. The State concludes that this court should not excuse defendant’s waiver by application of the plain error doctrine.
The rule of waiver is, of course, a limitation on the parties and not the courts. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 514 (1994); People v. Hoskins, 101 Ill. 2d 209, 219 (1984). In the exercise of its responsibility for a just result and the maintenance of a sound and uniform body of precedent, a reviewing court may consider issues not properly preserved by the parties. People v. Wilson, 155 Ill. 2d 374, 379 (1993), citing Hux v. Raben, 38 Ill. 2d 223, 225 (1967). In the present case, I believe this court should excuse defendant’s waiver for precisely these two reasons. First, this court may address defendant’s arguments on the merits in order to foster uniformity in our jurisprudence. See People v. Tooles, 177 Ill. 2d 462, 465 (1997) (addressing substantive arguments where questions regarding the failure to secure a written jury waiver had arisen frequently in appellate court); People v. Smith, 106 Ill. 2d 327, 333 (1985) (considering issue of jury waiver on its merits given its importance and the frequency with which it arises); People v. Rehbein, 74 Ill. 2d 435 (1978) (addressing issue on the merits because of the importance of the issue and the great number of cases reaching the appellate courts on the issue). Second, the record does not contain either a signed waiver indicating that defendant was voluntarily and understanding^ giving up his right to be present in court, or any other indication defendant had been ádvised he had the right to be present in court and was voluntarily and understanding^ giving up that right. It must be remembered that defendant’s first appearance was via closed-circuit television.4 At that time, the court advised defendant of the charges against him, the minimum and maximum penalty, the right to jury trial and the right to counsel. However, the court did not inform defendant that he had a right to be physically present in the courtroom. Each subsequent hearing followed the same format, with defendant appearing via closed-circuit television. The record contains neither a hint nor whisper of a caution to defendant that he could object to the format of the hearings. Given these circumstances, and recalling our responsibility for a just result, I believe it appropriate to consider defendant’s arguments on the merits. See Hoskins, 101 Ill. 2d at 219 (a reviewing court may ignore the waiver rule in order to achieve a just result).
The majority reviews defendant’s arguments under the plain error doctrine. See 134 Ill. 2d R. 615(a). Plain error is a limited and narrow exception to the general waiver rule, to be invoked only where the evidence is closely balanced, or the alleged error is so substantial that it deprived the defendant of a fair trial. People v. Bull, 185 Ill. 2d 179, 200 (1998). In the present case, the evidence of defendant’s guilt is overwhelming. Further, defendant does not contend in this court that the evidence was insufficient to prove his guilt beyond a reasonable doubt. See People v. Jackson, 84 Ill. 2d 350, 360 (1981). Consequently, application of the plain error doctrine must rest upon the deprivation of a substantial right.
The majority considers the alleged errors in light of this standard. The majority holds that defendant’s appearances via closed-circuit television at arraignment and at jury waiver did not render those proceedings unconstitutional. The majority also holds that defendant was not deprived of a substantial right because of the circuit court’s failure to adopt rules governing the use of closed-circuit television.5
Our legislature has defined arraignment as “the formal act of calling the defendant into open court, informing him of the offense with which he is charged, and asking him whether he is guilty or not guilty.” 725 ILCS 5/102 — 4 (West 1998). Our legislature has also provided that “[bjefore any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto.” 725 ILCS 5/113 — 1 (West 1998). Thus, our legislature seems to require a defendant’s presence in court at arraignment. Likewise, our legislature has provided that every person accused of an offense shall have the right to a trial by jury unless understandingly waived by the defendant in open court. 725 ILCS 5/103 — 6 (West 1998). Again, our legislature seems to require a defendant’s presence in court whenever the defendant waives trial by jury.6
This court has heretofore recognized that a defendant’s presence in open court is required at a jury waiver. People v. Scott, 186 Ill. 2d 283 (1999); People v. Smith, 106 Ill. 2d 327 (1985). In Scott, 186 Ill. 2d 283, this court considered whether a written waiver alone validly waives a defendant’s right to a jury trial. The defendant had executed a written jury waiver in his attorney’s office, which stated that the defendant had until the last Thursday of December 1994 to revoke the waiver. Subsequently, the written jury waiver was filed in court outside of the defendant’s presence. On the day of trial, in the defendant’s presence, defense counsel and the court each indicated that the trial would be a bench trial. The defendant did not object.
Initially, this court noted that section 103 — 6 provides that a bench trial may be held if the right to trial by jury is understandingly waived by defendant in open court. Thus, a waiver of the right to a jury trial is valid only if made (1) understandingly and (2) in open court. Next, this court noted that it had never found a valid jury waiver where the defendant was not present in open court when a jury waiver, written or otherwise, was at least discussed. Pointing to the statement in the jury waiver regarding revocation, this court stated that the language created the inference that the jury waiver was irrevocable after the last Thursday of December 1994. The defendant’s silence in court at the mention of a bench trial may have been due to his belief that it was too late to revoke the jury waiver. This court refused to hold that the defendant’s silence constituted acquiescence in the jury waiver. Instead, this court concluded that the defendant did not validly waive his right to a jury trial in open court. Accordingly, this court affirmed the judgment of the appellate court, reversing the judgment of the circuit court, and remanded the cause for a new trial. See also Smith, 106 Ill. 2d at 334 (consistent with constitutional jury trial provisions, section 103 — 6 provides that a jury waiver must be made in open court).
In this case, however, the majority eschews the requirement of physical presence at arraignment and at jury waiver. The majority explains:
“[T]he Illinois legislature has expressed a willingness to allow closed-circuit television appearances as a substitute for in-court appearances. In section 106D — 1(a) of the Code, it states that ‘[w]hen a defendant’s personal appearance is not required by the Constitution of the United States or Illinois Constitution, the court may allow the defendant to personally appear at any pre-trial or post-trial proceeding by way of closed circuit television when: (a) the court has authorized the use of closed circuit television and has by rule or order set out the type of proceedings that may be conducted by closed circuit television ***.’ [Citation.] Thus, a strict construction of the ‘open court’ language found in sections 103 — 6 and 113 — 1 as excluding closed-circuit television appearances is not warranted. Construing the provisions of sections 103 — 6 and 113 — 1 in pari materia with section 106D — 1, we discern the legislature’s intent to interpret the ‘open court’ language broadly to include appearances by closed-circuit television.” 201 Ill. 2d at 62-63.
While it is true that section 106D — 1 contemplates the use of closed-circuit television at pretrial proceedings, it is equally true that our legislature has imposed certain requirements on the use of closed-circuit television at pretrial proceedings. Section 106D — 1 shows clearly that the legislature intended to protect the rights of the defendant, and placed a charge upon the judiciary to implement rules regulating the use of closed-circuit television. Our legislature’s expressed willingness to allow the use of closed-circuit television is, therefore, entirely contingent upon the judicial implementation of rules governing the use of closed-circuit television.
In the case at bar, the circuit court did not properly safeguard defendant’s rights. In spite of the legislature’s command to implement rules securing the rights of this and other defendants, the circuit court failed to adopt any rules regulating the use of closed-circuit television. As the record clarifies, the circuit court’s failure to implement the requisite rules impacted negatively upon defendant’s ability to communicate spontaneously and completely with defense counsel. Whenever he needed to communicate with counsel, defendant had to interrupt the court proceedings and ask the court’s permission to do so. The court did not have a dedicated telephone line for private communication in the courtroom between defendant and defense counsel. Instead, the court instructed defendant to go to a telephone and await a call from counsel.7 In one instance, the court told defendant:
“Why don’t you go over and wait by the phone. When he gets a break here, he’ll give you a call.”
Perhaps more egregious were the conversations between defendant and counsel recorded in the transcripts of the court hearings. These conversations allowed all present to hear matters which would have been better discussed with counsel in private. Certainly, the circuit court should not have allowed defendant’s appearance via closed-circuit television to substitute for consultation between defendant and his counsel.
The majority recognizes that arraignment and jury waiver are critical stages of the criminal proceedings. However, the majority does little more than the circuit court to safeguard defendant’s rights. The majority notes:
“We acknowledge that defendant’s absence from the courtroom had some impact on defendant’s access to counsel. Because defendant and his attorney appeared at separate locations during the arraignment and jury waiver, defendant’s ability to communicate freely with counsel was impaired — communication through the closed-circuit system could not be done privately and, to speak privately, counsel was required to leave the courtroom to contact defendant by telephone. [Citation.] Nevertheless, we cannot say that, in the context of the arraignment and jury waiver involved here, defendant’s right to counsel was so impaired by his physical absence from the courtroom that he was denied the effective assistance of counsel. As noted above, at the arraignment, counsel merely entered defendant’s not-guilty plea. The fact that defendant was not physically present in the courtroom, by counsel’s side, had no prejudicial effect on defendant’s plea. We note, too, that prior to waiving trial by jury, defendant had the opportunity to consult privately with counsel.” 201 Ill. 2d at 59-60.
Thus, according to the majority, an arraignment is nothing of substance, at least when the defendant enters a plea of not guilty. The majority gives greater substance to the jury waiver, requiring prior communication between defendant and counsel. The problem, however, is that the majority assumes the telephone conversation between defendant and counsel was private. There is no indication in the record as to where counsel was when he placed the telephone call to defendant. There is also no indication in the record as to where defendant was when he received the telephone call or how many guards were with him. In his brief, defendant informs this court that one of the telephone conversations between defense counsel and defendant occurred over the courtroom telephone.
To be fair, the majority does recognize that the circuit court failed in its duty to implement rules governing the use of closed-circuit television. The majority is “disturbed by the circuit court’s laxity and caution[s] that courts must discharge their responsibility to promulgate rules as required by section 106D — 1 of the Code.” 201 Ill. 2d at 64-65. The majority’s concern, however, is of no more substance than that displayed by the courts of the Third District. As I noted above, issues regarding the use of closed-circuit television have arisen with some frequency in the Third District. The circuit courts of the Twelfth and Twenty-first judicial districts have allowed the use of closed-circuit television at a number of pretrial proceedings, without first implementing rules regulating the use of the system. The appellate court has blinded itself to this practice by refusing to take judicial notice of the rules of the circuit courts. In light of the widespread use of closed-circuit television, our legislature’s command that the circuit courts adopt rules governing the use of closed-circuit television, and this court’s supervisory authority over all the courts of this state, this court is called upon to do more to protect the rights of the defendants at pretrial proceedings.
The majority states that its holding “is in line with the holdings of other state supreme courts which have considered the matter,” citing Commonwealth v. Ingram, 46 S.W.3d 569 (Ky. 2001), Larose v. Hillsborough County Correction Administration, 142 N.H. 364, 702 A.2d 326 (1997), State v. Phillips, 74 Ohio 3d 72, 656 N.E.2d 643 (1995), In re Rule 3.160(a), Florida Rules of Criminal Procedure, 528 So. 2d 1179 (Fla. 1988), and Commonwealth v. Terenbieniec, 268 Pa. Super. 511, 408 A.2d 1120 (1979). 201 Ill. 2d at 60-61. Some distinguishing factors exist, however, which diminish this claim of support. First, the cases cited by the majority deal exclusively with the use of closed-circuit television at arraignment. An argument may be made that the time requirements for arraignment justify the use of closed-circuit television. See Larose, 142 N.H. at 366, 702 A.2d at 328 (“Here, the legislature intended to insure the timely arraignment of a person being held in custody, not to guarantee face-to-face contact with the court”). The majority does not cite to any cases involving jury waiver. Second, the majority fails to review the rules adopted by these jurisdictions, and other jurisdictions which have experimented with the use of closed-circuit television, to protect the rights of the defendants. My review of case law and statutes enacted by several jurisdictions shows a greater concern for the rights of the defendant than that shown by this court. For example, in Ingram, the video arraignment system allowed all participants to see and hear each other simultaneously. Another part of the video arraignment system consisted of television monitors from which any person present in the courtroom could view the arraignment proceeding. Additionally, if the accused was represented by counsel, communication between the two could be achieved through the use of conference room telephones. Ingram, 46 S.W.Sd at 570. In Larose, the court described the arraignment procedure as follows:
“Pursuant to a temporary order of this court, arraignments and bail hearings in Hillsborough County may be conducted via a teleconference system installed between the superior courthouse, housing in this instance the Nashua District Court, and the Nashua Police Station. Under the temporary procedure, a defendant and his or her attorney is able to view the courtroom on a television monitor divided into four sections, each displaying a different person or part of the courtroom. Similarly, the district court judge can view a defendant and his or her attorney on one of five monitors mounted around the courtroom.” (Emphases added.) Larose, 142 N.H. at 365, 702 A.2d at 328.
Thus, it appears that the defendant and counsel were at the same location, and, were presumably able to communicate directly and freely at the arraignment. In Terenbieniec, 268 Pa. Super. 511, 408 A.2d 1120, the Pennsylvania Superior Court allowed the use of closed-circuit television at the defendant’s arraignment. The Pennsylvania Consolidated Statutes specifically require that:
“The audio-video communication must operate so that the defendant and the judge can see each other simultaneously and converse with each other. If the defendant has counsel, the defendant shall be allowed to communicate fully and confidentially with his attorney during the proceeding.” 42 Pa. Cons. Stat. § 8703 (2001).
The Alabama Code of Criminal Procedure provides in part:
“The audio-video communication shall enable the judge or magistrate to see and converse simultaneously with the defendant or other person and operate so that the defendant and his or her counsel, if any, can communicate privately, and so that the defendant and his or her counsel are both physically present in the same place during the audio-video communication.” Ala. Code § 15 — 26—1 (2001).
The Kansas Code of Criminal Procedure provides in part:
“The defendant may be accompanied by the defendant’s counsel during [audio-video] arraignment. The defendant shall be informed of the defendant’s right to be personally present in the courtroom during arraignment.” Kan. Stat. Ann. § 22 — 3205(b) (2000).
The Mississippi Code of Criminal Procedure provides in part:
“When the physical appearance in person in court is required of any person who is represented by counsel and held in a place of custody or confinement ***, upon waiver of any right such person may have to be physically present, such personal appearance may be made by means of closed circuit television from the place of custody or confinement, provided that such television facilities provide two-way audio-visual communication between the court and the place of custody or confinement and that a full record of such proceedings be made by split-screen imaging and recording of the proceedings in the courtroom and the place of confinement or custody in addition to such other record as may be required ***.” Miss. Code Ann. § 99 — 1—23 (Supp. 2001).
The Michigan Code of Criminal Procedure provides in part:
“(1) Unless the defendant requests physical presence before the court, a judge or district court magistrate may conduct initial criminal arraignments and the setting of bail by 2-way closed circuit television communication between a court facility and a prison, jail, or other place where a person is imprisoned or detained. ***
(3) Except as otherwise provided by law, the public shall have access to the courtroom, with the ability to view and hear the proceedings.” Mich. Comp. Laws § 767.37a (2000).
The Montana Code of Criminal Procedure provides in part:
“(4) Whenever the law requires that a defendant in a misdemeanor or felony case be taken before a court for an arraignment, this requirement may, in the discretion of the court, be satisfied either by the defendant’s physical appearance before the court or by two-way electronic audio-video communication. The audio-video communication must operate so that the defendant and the judge can see each other simultaneously and converse with each other, so that the defendant and the defendant’s counsel, if any, can communicate privately, and so that the defendant and the defendant’s counsel are both physically present in the same place during the two-way electronic audio-video communication.” Mont. Code Ann. § 46 — 12—201 (2000).
The New Mexico Court Rules provide in part:
“H. Audio-visual appearance. The arraignment or first appearance of the defendant before the court may be through the use of a two-way audio-video communication if the following conditions are met:
(1) the defendant and the defendant’s counsel are together in one room at the time of the first appearance before the court;
(2) the judge, legal counsel and defendant are able to communicate and see each other through a two-way audio-video system which may also be heard and viewed in the courtroom by members of the public; and
(3) no plea is entered by the court except a plea of not guilty.” N.M. Dist. Ct. R. Crim. E 5 — 303(H) (2002).
The North Carolina General Statutes provide in part:
“(b) An arraignment in a noncapital case may be conducted by an audio and video transmission between the judge and the defendant in which the parties can see and hear each other. If the defendant has counsel, the defendant shall be allowed to communicate fully and confidentially with his attorney during the proceeding.” N.C. Gen. Stat. § 15A — 941(b) (2002).
The Oregon Revised Statutes provide in part:
“[A]ppearance by simultaneous television transmission shall not be permitted unless the facilities used enable the defendant to consult privately with defense counsel during the proceedings.” Or. Rev. Stat. § 135.030 (2001).
The Tennessee Rules of Criminal Procedure provide that “in the absence of an objection by the defendant” the arraignment may be through the use of an electronic audiovisual device. Tenn. Crim. Proc. R. 43(e) (2002). The Rules of Criminal Procedure for the Superior Court of the State of Delaware provide that “ [television monitors shall be situated in the courtroom and at the place of incarceration so as to provide the public, the court, and the defendant with a view of the proceedings.” Del. Super. Ct. Crim. R. 10(b) (2000). Lastly, the district court of the State of Louisiana allows the use of closed-circuit television at arraignment “except when the defense counsel requests the defendant’s appearance in open court.” La. 22 Dist. Ct. R. XXI (2001).
This review, although not exhaustive, clearly demonstrates that most jurisdictions which allow the use of closed-circuit television have also attempted to safeguard the rights of the accused.
CONCLUSION
This court and the United States Supreme Court have recognized that arraignment is a critical step in a criminal proceeding. Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972); People v. Hessenauer, 45 Ill. 2d 63, 67-68 (1970). In Kirby, the United States Supreme Court explained:
“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, 406 U.S. at 689, 32 L. Ed. 2d at 417-18, 92 S. Ct. at 1882.
Because of the critical nature of the arraignment, a defendant is entitled to the assistance of counsel. Hamilton v. Alabama, 368 U.S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157 (1961); Hessenauer, 45 Ill. 2d at 68.
Jury waiver is also a critical step in a criminal proceeding. As noted in People v. Young, 201 Ill. App. 3d 521, 533 (1990), “a critical stage has been reached whenever constitutional or other rights can be asserted or waived, or where events occur that can prejudice the defendant’s subsequent trial.” The right of a defendant to a jury trial is guaranteed by the Illinois Constitution (Ill. Const. 1970, art. I, § 8), and the federal Constitution (U.S. Const., amends. VI, XIV). A proceeding at which a defendant waives his right to a jury trial involves the relinquishment of the defendant’s constitutional right and is a critical step in the criminal process.
Our legislature has recognized that a defendant has certain rights at criminal proceedings, including pretrial proceedings. In an attempt to safeguard those rights, our legislature has mandated the enactment of rules prior to the use of closed-circuit television at pretrial proceedings. Contrary to this legislative mandate, the courts of the Third District have allowed the use of closed-circuit television systems at pretrial proceedings without first enacting the required rules.
This court acknowledges that the circuit court failed to adopt the rules required by our legislature. This court also acknowledges that arraignment and jury waiver are critical steps in a criminal proceeding. Lastly, this court acknowledges that the closed-circuit television system used at defendant’s arraignment and jury waiver impacted negatively on defendant’s right to counsel. Contrary to these findings, however, this court upholds the circuit court’s use of closed-circuit television at defendant’s arraignment and at jury waiver.
This court has a duty to supervise the courts of this state. Where certain rules are required by our legislature, this court should take an active role in ensuring that the rules are adopted. Further, this court has a responsibility for a just result in reviewing a decision of a lower court. In the present case, the court fails in both duties. By affirming defendant’s conviction, the court abandons the goal of a just result. Also, the court countenances the circuit court’s failure to comply with the legislative mandate. Today’s decision provides little incentive for our circuit courts to obey the legislature and defeats the legislature’s attempts to safeguard the rights of those accused of crimes. I respectfully dissent.
CHIEF JUSTICE HARRISON and JUSTICE KIL-BRIDE join in this dissent.
The majority finds it is not clear from the record whether defendant appeared in person at this proceeding or via closed-circuit television. However, in his brief, defendant has informed this court that he appeared via closed-circuit television at all pretrial proceedings in this case. The State has adopted defendant’s statement of facts.
Having found that defendant’s appearance via closed-circuit television at arraignment did not constitute plain error, the majority comments:
“Parenthetically, even if it had been error to conduct defendant’s arraignment by closed-circuit television, defendant would not have been able to demonstrate plain error. Section 113 — 6 of the Code (725 ILCS 5/113 — 6 (West 1998)) provides that ‘[n]either a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding in the cause if the defendant pleads to the charge or proceeds to trial without objecting to such failure or irregularity.’ Thus, any ‘irregularity’ of conducting defendant’s arraignment by closed-circuit television would have been waived once defendant proceeded to trial without objection.” 201 Ill. 2d at 63.
To the extent that the majority is suggesting that a deprivation of fundamental rights is not plain error if sanctioned by the legislature, I disagree most respectfully but emphatically.
These provisions stand in contrast to section 109 — 1 of the Code. 725 ILCS 5/109 — 1 (West 1998). The latter provides:
“Whenever a person arrested either with or without a warrant is required to be taken before a judge, a charge may be filed against such person by way of a two-way closed circuit television system, except that a hearing to deny bail to the defendant may not be conducted by way of closed circuit television.” 725 ILCS 5/109 — 1 (West 1998).
From my review of the record, I cannot determine what length of time elapsed between each request from defendant to speak with counsel and counsel’s telephone call to defendant. For the most part, it is also impossible to ascertain whether defense counsel telephoned defendant from a telephone outside of the courtroom or used a telephone in the courtroom.