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Voir dire in criminal cases - Rule 431(b) guidance for lawyers and judges.

A supreme court rule requires judges to ask potential jurors whether they understand and accept four fundamental principles of criminal law, including the presumption of innocence and right not to testify. Though the rule sounds straightforward, judges often violate it. This article examines recent case law and offers guidance to lawyers and judges.

The 2007 amendment to Illinois supreme Court rule 431(b) charged trial courts with a sua sponte duty to question potential jurors about four fundamental principles of criminal law. (1) This article examines the history of rule 431(b), explores recent case law, (2) and offers guidance to lawyers and judges.

Background

In 1980, defendant Kenneth Zehr submitted three questions to the trial court to be asked during voir dire. (3) The questions concerned the state's burden to prove the defendant guilty beyond a reasonable doubt, the defendant's right not to testify, and the presumption that the defendant is innocent and need not present evidence. (4) The trial court rejected Zehr's questions, and he was subsequently convicted. (5)

The Illinois Supreme Court ultimately reversed Zehr's conviction, reasoning that agreement with these basic principles is "essential to the qualification of jurors in a criminal case" (6) and that "'[e]ach of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury.'" (7)

In 1997, the Illinois Supreme Court codified the Zehr holding in Supreme Court Rule 431(b):
 If requested by the defendant, the court
 shall ask each potential juror, individually
 or in a group, whether that juror understands
 and accepts the following principles:
 (1) that the defendant is presumed innocent
 of the charge(s) against him or her;
 (2) that before a defendant can be convicted
 the State must prove the defendant
 guilty beyond a reasonable doubt; (3) that
 the defendant is not required to offer any
 evidence on his or her own behalf; and (4)
 that the defendant's failure to testify cannot
 be held against him or her; however,
 no inquiry of a prospective juror shall be
 made into the defendant's failure to testify
 when the defendant objects.

 The court's method of inquiry shall
 provide each juror an opportunity to respond
 to specific questions concerning the
 principles set out in this section. (8)


In a 2007 amendment, the supreme court deleted "If requested by the defendant" from the beginning of the rule. (9) By striking these five words, the court charged trial courts with a sua sponte duty to question potential jurors about the Zehr principles. (10)

How can trial judges comply with Rule 431(b)?

Rule 431(b) compliance is simple, yet trial judges frequently violate the rule by being under--or over-inclusive. Judges tend to be under-inclusive in three ways. First, they may omit one or more of the four principles. (11) Second, judges may commit a "Jeopardy" error--they correctly state each of the four principles but fail to do so in the form of a question (e.g., Do you understand and accept these principles?). (12)

Finally, a judge may commit a "bundling" error, in which he or she inquires about the venirepersons' acceptance and understanding only after having recited multiple principles. (13) Under-inclusive questioning almost always runs afoul of Rule 431(b). (14)

Judges tend to be over-inclusive by reciting elements of law not included in the Zehr principles. For instance, in People v Alexander, the trial judge failed to comply with Rule 431(b), but did ask, "Do you have any bias against a person merely because he has been charged with a criminal offense?" and "Will you decide the case without sympathy or prejudice?" (15)

The danger of over-inclusivity is twofold. First, by directing potential jurors to follow non-Zehr instructions, judges may violate Illinois Supreme Court Rule 431(a)'s prohibition on questioning the venire about matters of law or instruction. (16) Second, non-Zehr instructions often muddy the waters, causing judges to forget to fully address the Zehr principles.

Despite the recent flurry of Rule 431(b) violations, compliance is quite easy. Judges need only remember to (1) address all four principles, no more, no less; (2) recite each principle one at a time; (3) ask whether the venirepersons both understand and accept each of the principles; and (4) require a verbal response from each of the venirepersons. Thus, the following script is recommended:
 Ladies and gentlemen, I am required to
 discuss with you four principles of criminal
 law. After I read each principle, I will
 ask each of you two questions: one, do
 you understand the principle, and two, do
 you accept the principle. Please respond
 "yes" or "no" to each question.

 Here is the first principle: The defendant
 is presumed innocent of the charges
 against him. Juror Number 1, do you understand
 that principle? [Await the juror's
 verbal response.] Juror Number 1, do you
 accept that principle? [Await the juror's
 verbal response.] Juror Number 2, do you
 understand that principle?


And so on. While some variation is permissible, following the example above will ensure Rule 431(b) compliance.

What should trial attorneys do if a judge does not comply?

When a trial judge fails to properly question the venire, it is important to bring it to his or her attention. Hopefully, a simple reminder--e.g., "Judge, when do you want to cover the Zehr principles?"--will do. Such a reminder may avoid placing the attorney in the position of objecting to the trial judge's conduct before trial has even begun.

If, however, the court still does not properly question the venire, it is important to object to preserve the error. The appellate court has frequently viewed a defense attorney's failure to object and raise the issue in a motion for a new trial as forfeiture, thus necessitating plain error analysis and decreasing the defendant's chances of success on appeal. (17)

Should prosecutors object as well? Objecting to violation of a rule designed to protect defendants seems counterintuitive.

However, in his concurrence in People v Anderson, Justice Garcia remarked that prosecutors should object, because they are representatives of the people of Illinois and, as such, have a duty to ensure that Illinois' rules and laws are followed. (18) Moreover, he argued, it would seem hypocritical for prosecutors to sit idly by while a trial judge violates the rule and then later claim forfeiture of the issue on appeal. (19)

If this ethical imperative provides insufficient motivation, recent case law should do the trick. Appellate courts have strictly interpreted Rule 431(b) compliance, and the first district in particular has tended to order a new trial where judges failed to comply. (20) Thus, a reminder from a prosecutor to a forgetful trial judge could prevent subsequent reversal on appeal.

Where do the appellate court districts stand?

Since its 2007 amendment, Rule 431(b) has been in flux. Illinois courts have examined a wide range of issues, including the amendment's retroactivity, (21) whether the rule is constitutionally based, (22) and what constitutes compliance. (23) Primarily, however, they have focused upon whether violation of Rule 431(b) requires a new trial. (24)

In the absence of a post-amendment Illinois Supreme Court decision, the first, second, third, and fourth districts have split regarding whether a new trial is necessary. (25) This section examines how appellate courts decide whether to grant a new trial. It briefly reviews 13 post-amendment appellate court opinions. It then turns to recent developments in the Illinois Supreme Court, including its decision in the pre-amendment case People v Glasper, (26) the court's decision to vacate 11 post-amendment cases for reconsideration in light of Glasper, and the promise of a post-amendment decision by the supreme court.

The decision-making process. If a trial judge violates Rule 431(b), the appellate court must address two questions: (1) whether the defendant preserved the issue; and (2) if the issue was forfeited, whether the trial court's failure constitutes plain error. (27)

Regarding the latter, under People v Herron, there are two prongs under which courts may find plain error: (1) the evidence was closely balanced; or (2) the error was so substantial that it affected the fundamental fairness of the proceeding, and correcting the error is necessary to preserve the integrity of the judicial process. (28)

In most of the cases below, the appellate court found that the trial court had violated Rule 431(b).29 However, because none of the defendants preserved the error, the appellate court usually engaged in plain error analysis. (30)

First district. In all but one of its post-amendment decisions, the first district found plain error under the second Herron prong. (31) In Anderson, the court decided not to consider the substantial evidence supporting the defendant's conviction, because the trial court's "Jeopardy" error was so serious that the defendant was denied a substantial right and, consequently, a fair trial. (32) Thus, the court reversed the defendant's conviction and remanded for a new trial. (33)

The Illinois Supreme Court subsequently ordered the first district to vacate its Anderson decision for reconsideration in light of Glasper. (34) (See discussion of Glasper below.) The court has not yet issued a new opinion.

The first district reached a similar result in People v Graham, People v Wilmington, People v Arredondo, and People v Madrid. In each case, the court found that the trial court's error was so serious that defendant was denied a substantial right and, thus, a fair trial. (35) The court repeatedly stated that until the supreme court interprets the 2007 version of Rule 431(b) it will continue to follow the approach it set forth in Anderson. (36) Accordingly, in each of these cases, the court reversed the trial court's decision and remanded for a new trial. (37)

People v Vargas and People v Magallanes represent a major departure from the first district's Anderson approach. Initially, the Vargas court took a much more liberal approach to forfeiture, finding that it should not rigidly apply forfeiture where preservation would have required objecting to a judge's conduct. (38) Thus, the court reviewed that case on its merits. (39)

Similarly, the Magallanes court found that the trial court's "Jeopardy" error did not require automatic reversal or reversal under Herron's second prong. (40) The court distinguished Anderson and its progeny and advocated a more fact-specific analysis. (41) It further noted that it found no discernable difference between that case and Glasper. (42) Accordingly, the court affirmed the defendant's conviction.

Yet the Vargas court rejected the defendant's contention that the trial court's "Jeopardy" error necessitated a new trial. (43) The court found that Rule 431(b) does not require any "magic words," and the trial court had substantially complied with the rule. (44) The court thus rejected the defendant's Rule 431(b) claim. (45)

Second district. In the second district's only published Rule 431(b) opinion to date, the court sided with Anderson and its progeny. In People v Blair, the appellate court failed to comply with Rule 431(b), where it committed a "Jeopardy" error. (46) The court concluded that this error "denied defendant a substantial right, undermined the fairness of his trial, and impacted the integrity of the judicial process." (47) Accordingly, the court reversed and remanded for a new trial. (48)

Third district. In Alexander, the third district embraced the fact-specific, substantial-compliance approach the first district rejected in Anderson. The court found that the trial court's "Jeopardy" error did not constitute plain error. (49) In particular, the defendant had not been deprived an impartial jury, where the trial court stated each of the Zehr principles and asked a series of questions about the venirepersons' prejudice. (50) Thus, the court affirmed the defendant's conviction. (51)

As in Anderson, the Illinois Supreme Court subsequently ordered the third district to vacate its decision in Alexander for reconsideration in light of Glasper. (52) (See discussion of Glasper below.) On remand, the Alexander court again affirmed, finding that, although Glasper concerned the previous version of Rule 431(b), its reasoning applies equally to post-amendment cases. (53) (See also the recent third district case People v Amerman. (54)). Justice McDade, however, wrote a strong dissent, in which he argued that Rule 431(b)'s evolution, its mandatory application, and the very nature of the Zehr principles demonstrate that divergence from the Glasper decision (55) is necessary in post-amendment cases.

In People v Russell, the third district again rejected a defendant's Rule 431(b) claim. There, the court emphasized the failure of both defense counsel and the state to object to the trial court's "Jeopardy" error. (56) More importantly, the Russell court expressly adopted the Illinois Supreme Court's pre-2007 amendment holding in Glasper (see discussion below). (57) The third district concluded that plain error did not exist, as the case was neither closely balanced nor fundamentally unfair. (58) Thus, the court rejected the defendant's Rule 431(b) challenge. (59)

The court took a different approach in People v Belknap. There, surprisingly, the state concurred with the defendant that the trial court had not substantially complied with Rule 431(b) where it committed a "Jeopardy" error. (60) The appellate court agreed that the trial court had erred; thus, the third district engaged in a plain error analysis. (61) The court determined that the facts had been closely balanced at trial and, therefore, the trial court's error prejudiced the defendant. (62) Accordingly, the court reversed and remanded for a new trial. (63)

Fourth district. The fourth district found the trial judge's error harmless in one early case and found plain error in two later cases. (64) In People v Stump, the court concluded that the trial judge had, at some point, stated each of the four Zehr principles, albeit in narrative form--a "Jeopardy" error. (65) Additionally, the court noted that the evidence against the defendant had been overwhelming. (66) Because it could not conclude that the jury's verdict was affected by the error, the court found the error harmless. (67)

As with Anderson and Alexander, the Illinois Supreme Court subsequently ordered the fourth district to vacate its decision in Stump for reconsideration in light of Glasper. (68) (See discussion of Glasper below.) The court has not yet issued a new opinion.

In People v Blanton, the fourth district found that the trial court's omission of one of the principles was plain error under the second Herron prong. (69) More recently, in People v Owens, the fourth district found that the trial court's "Jeopardy" error constituted plain error. (70) The court distinguished Stump, stating that, unlike the trial court in Stump, the Owens trial court had failed to question any venireperson about the Zehr principles. (71)

Notably, the Owens court also suggested that the 2007 version of Rule 431(b) may be constitutionally based. (72) The court struck a similarly first-district tone when it found that it was unable to determine whether the trial court's Rule 431(b) violation may have contributed to the defendant's jury's verdict. (73) Oddly, the court did not mention its Blanton decision.

Illinois Supreme Court. Although a pre-amendment case, Glasper may provide a glimpse into the Illinois Supreme Court's post-amendment approach. (74) There, the supreme court found that, because Rule 431(b) is not constitutionally based, the trial court's "Jeopardy" error did not require automatic reversal and thus could be subject to harmless error review. (75) The court ultimately found harmless error, noting that "no rational juror would have acquitted the defendant of the offenses for which he was charged." (76) The court stressed, however, that its holding was limited to the pre-2007 amendment version of Rule 431(b). (77)

In a scathing dissent, Justice Burke argued that Illinois courts had repeatedly held that, during voir dire, the failure of a trial court to tender questions concerning juror bias constitutes prejudicial error, because it deprives the defendant of his right to an impartial jury. (78) Moreover, she asserted that the majority's decision was contrary to the Zehr court's finding that these principles were "essential" to guaranteeing an impartial jury and that the failure to include something that is essential cannot be harmless. (79)

Since Glasper, there have been two noteworthy Rule 431(b) developments in the supreme court. First, on September 30, 2009, the court directed the appellate court to vacate its decision in 11 cases, including three published decisions: People v Stump, People v Anderson, and People v Alexander. (80) In each order, the court directed the appellate court to "reconsider its judgment in light of People v Glasper."

At first glance, the Illinois Supreme Court's decision to vacate each of these decisions appears puzzling. The court did not simply vacate decisions on one side of the Rule 431(b) fence (for instance, it vacated Anderson, which found plain error, and Alexander, which did not). Perhaps the court simply wishes to see the appellate court grapple with Rule 431(b) a bit longer in order to have a clear view of all of its available options.

The second noteworthy development is that the court finally granted leave to appeal in a post-2007 amendment Rule 431(b) case. (81) It is unsurprising that the court would grant leave to appeal in a Rule 431(b) case. However, it is interesting that leave to appeal was granted less than two months after the court vacated 11 appellate court decisions. Equally remarkable is that the court did not grant leave to appeal in any of the major published cases--such as Anderson--but rather in an unpublished first district case, People v Thompson (82) Thompson is pending at the time of this publication.

What's next?

We will likely see a number of changes to Rule 431(b)'s application, in part because the Illinois Supreme Court has yet to rule on a post-2007 amendment case. Four appellate court districts have begun to address several issues, yet many of their solutions may run contrary to the supreme court's decision in Glasper.

Meanwhile, trial judges should keep it simple: do no more and no less than is required. Trial attorneys should remind judges of the rule and object any time a judge fails to properly question the venire.

Appellate attorneys should leverage recent opinions, but also be mindful that Rule 431(b) is still open to interpretation. Most importantly, attorneys and judges alike should know that Rule 431(b) is a vital part of ensuring impartiality during a jury trial, and that compliance with its requirements is relatively simple.

(1.) Ill S Ct rule 431(b) (2007).

(2.) People v Vargas, 2009 WL 4041897 (1st D 2009); People v Russell, 2009 WL 4030950 (3d D 2009); People v Belknap, 2009 WL 4030943 (3d D 2009); People v Madrid, 2009 WL 3247601 (1st D 2009); People v Arredondo, 2009 WL 3247581 (1st D 2009); People v Blair, 2009 WL 3153044 (2d D 2009); People v Wilmington, 394 Ill App 3d 567, 915 NE2d 882 (1st D 2009); People v Owens, 394 Ill App 3d 147, 914 NE2d 1280 (4th D 2009); People v Graham, 393 Ill App 3d 268, 913 NE2d 99 (1st D 2009); People v Blanton, 2009 WL 3838848 (4th D 2009); People v Alexander, 391 Ill App 3d 419, 908 NE2d 173 (3d D 2009), vacd, People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); People v Anderson, 389 Ill App 3d 1, 904 NE2d 1113 (1st D 2009), vacd, People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); People v Stump, 385 Ill App 3d 515, 896 NE2d 904 (4th D 2008), vacd, People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(3.) People v Zehr, 103 Ill 2d 472, 474-75, 469 NE2d 1062, 1063 (1984).

(4.) Id at 476, 469 NE2d at 106-64.

(5.) Id at 474, 469 NE2d at 1063.

(6.) Id at 477-78, 469 NE2d at 1064.

(7.) Id, quoting People v Zehr, 110 Ill App 3d 458, 461, 442 NE2d 581, 485 (3d D 1982).

(8.) Ill S Ct Rule 431(b) (1997).

(9.) Ill S Ct Rule 431(b) (2007), Historical Notes.

(10.) Anderson, 389 Ill App 3d at 8, 904 NE2d at 1120, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009).

(11.) See Blanton, 2009 WL 3838848 at *4; Graham, 393 Ill App 3d at 273, 913 NE2d at 104.

(12.) See, for example, People v Glasper, 234 Ill 2d 173, 917 NE2d 401 (2009), Stump, 385 Ill App 3d at 519, 896 NE2d at 907, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009); Anderson, 389 Ill App 3d at 8, 904 NE2d at 1120, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); Alexander, 391 Ill App 3d at 421-22, 908 NE2d at 176, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); Owens, 394 Ill App 3d 147, 914 NE2d at 1284.

(13.) See, for example, Graham, 393 Ill App 3d at 273, 913 NE2d at 104.

(14.) See, for example, Wilmington, 394 Ill App 3d at 572, 915 NE2d at 886; Owens, 394 Ill App 3d 147, 914 NE2d at 1284; Graham, 393 Ill App 3d at 275, 913 NE2d at 105; Blanton, 2009 WL 3838848 at *3; Alexander, 391 Ill App 3d at 430, 908 NE2d at 183, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); Anderson, 389 Ill App 3d at 7, 904 NE2d at 1119, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); Stump, 385 Ill App 3d at 519, 896 NE2d at 907, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(15.) 391 Ill App 3d at 422, 908 NE2d at 176, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009).

(16.) Ill S Ct Rule 431(a). In Zehr, the Illinois Supreme Court found that the Zehr principles are not considered matters of law or instruction under Rule 234 (the civil law equivalent to Rule 431(a)). Zehr, 103 Ill 2d at 477, 469 NE2d at 1064.

(17.) See Wilmington, 394 Ill App 3d at 573, 915 NE2d at 887; Owens, 394 Ill App 3d 147, 914 NE2d at 1284-85; Graham, 393 Ill App 3d at 270-71, 913 NE2d at 101-02; Blanton, 2009 WL 3838848 at *4; Alexander, 391 Ill App 3d at 430, 908 NE2d at 183, vacd, People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); Anderson, 389 Ill App 3d at 4, 904 NE2d at 111, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); Stump, 385 Ill App 3d at 522, 896 NE2d at 909, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(18.) 389 Ill App 3d at 11, 904 NE2d at 1122 (Garcia concurring), vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009).

(19.) Id.

(20.) Graham, 393 Ill App 3d at 277, 913 NE2d at 106; Anderson, 389 Ill App 3d at 9, 904 NE2d at 1121, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009).

(21.) The appellate court has consistently rejected Rule 431(b)'s retroactvity. However, because most pre-amendment cases have already been through direct appeal, retroactivity is largely a moot point. The 2007 amendment went into effect on May 1, 2007. If a trial court conducted voir dire on or after that date, it had a sua sponte duty to question the venire about the Zehr principles. If, however, voir dire occurred before May 1, 2007, the 1997 version applies, and the defendant was required to request Zehr questioning. See People v Jocko, 389 Ill App 3d 247, 906 NE2d 38 (1st D 2009); People v Gilbert, 379 Ill App 3d, 882 NE2d 1140 (1st D 2008); People v Martinez, 386 Ill App 3d 153, 897 NE2d 879 (1st D 2008); People v Yarbor, 383 Ill App 3d 676, 889 NE2d 1225 (1st D 2008).

(22.) Glasper, 234 Ill 2d at 228, 917 NE2d at 433 (pre-2007 amendment version of Rule 431(b) not constitutionally based); Owens, 394 Ill App 3d 147, 914 NE2d at 1284 (post-2007 amendment version Rule 431(b) may be constitutionally based).

(23.) Stump, 385 Ill App 3d at 521, 896 NE2d at 909, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(24.) See, for example, Wilmington, 915 NE2d at 889; Owens, 394 Ill App 3d 147, 914 NE2d at 1286; Graham, 393 Ill App 3d at 275-76, 913 NE2d at 105-06; Blanton, 2009 WL 3838848 at *3; Alexander, 391 Ill App 3d at 430, 908 NE2d at 183, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); Anderson, 389 Ill App 3d at 7, 904 NE2d at 1119, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); Stump, 385 Ill App 3d at 519, 896 NE2d at 907, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(25.) Pat Milhizer, Split deepens on questioning venire pool, Chicago Daily Law Bulletin 1, 24 (September 24, 2009). The fifth district has yet to publish a decision concerning the 2007 amendment to Rule 431(b).

(26.) 234 Ill 2d 173, 917 NE2d 401 (2009).

(27.) See Wilmington, 394 Ill App 3d at 572, 915 NE2d at 886; Owens, 394 Ill App 3d 147, 914 NE2d at 128485; Anderson, 389 Ill App 3d at 4, 904 NE2d at 1117, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); Blanton, 2009 WL 3838848 at *4; Alexander, 391 Ill App 3d at 430, 908 NE2d at 183, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009).

(28.) 215 Ill 2d 167, 186-87, 830 NE2d 467, 479 (2005).

(29.) See, for example, Wilmington, 394 Ill App 3d at 572, 915 NE2d at 885-86; Owens, 394 Ill App 3d 147, 914 NE2d 1284; Graham, 393 Ill App 3d at 275, 913 NE2d at 105; Blanton, 2009 WL 3838848 at *5; Alexander, 391 Ill App 3d at 430, 908 NE2d at 183, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); Anderson, 389 Ill App 3d at 7, 904 NE2d at 1119, vacd, People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); Stump, 385 Ill App 3d at 519, 896 NE2d at 907, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(30.) See, for example, Wilmington, 394 Ill App 3d at 572, 915 NE2d at 885-86; Owens, 394 Ill App 3d 147, 914 NE2d at 1285-86; Graham, 393 Ill App 3d at 275, 913 NE2d at 105; Blanton, 2009 WL 3838848 at *4; Alexander, 391 Ill App 3d at 430, 908 NE2d at 183, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); Anderson, 389 Ill App 3d at 4, 904 NE2d at 111, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); Stump, 385 Ill App 3d at 522, 896 NE2d at 909, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009). There may be a compelling argument that defendants now have no duty to preserve the trial court's error, as the amendment purposefully switched the duty from the defendant to the trial judge. Therefore, where a defendant failed to object at trial, the defense attorney should consider arguing on appeal that the defendant was not required to preserve the error and thus did not forfeit his or her Rule 431(b) issue.

(31.) Wilmington, 394 Ill App 3d at 575, 915 NE2d at 889; Arredondo, 2009 WL 3247581 at *9; Madrid, 2009 WL 3247601 at *8; Graham, 393 Ill App 3d at 275, 913 NE2d at 105; Anderson, 389 Ill App 3d at 9, 904 NE2d at 1121, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009).

(32.) Anderson, 389 Ill App 3d at 9, 904 NE2d at 1120, vacd People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009).

(33.) Id at 10, 904 NE2d at 1121.

(34.) People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009).

(35.) Graham, 393 Ill App 3d at 275, 913 NE2d at 105 ("omission" and "bundling" errors); Wilmington, 394 Ill App 3d at 575, 915 NE2d at 889 ("Jeopardy" error); Arredondo, 2009 WL 3247581 at *9 ("Jeopardy" error); Madrid, 2009 WL 3247601 at *8 ("Jeopardy" error). Notably, in Graham, the court rejected the State's claim that the trial attorneys helped address the Zehr principles, finding that trial judges cannot delegate their Rule 431(b) duty to trial attorneys, but must address the Zehr principles themselves. Graham, 393 Ill App 3d at 275, 913 NE2d at 105.

(36.) Graham, 393 Ill App 3d at 275, 913 NE2d at 105; Wilmington, 394 Ill App 3d at 575, 915 NE2d at 888-89; Arredondo, 2009 WL 3247581 at *9; Madrid, 2009 WL 3247601 at *8.

(37.) Graham, 393 Ill App 3d at 275, 913 NE2d at 106; Wilmington, 394 Ill App 3d at 575, 915 NE2d at 889; Arredondo, 2009 WL 3247581 at *10; Madrid, 2009 WL 3247601 at *9.

(38.) Vargas, 2009 WL 4041897 at *3.

(39.) Id.

(40.) People v Magallanes, 2009 WL 5125409 (1st D 2009).

(41.) Id at *17 FN1.

(42.) Id at *19.

(43.) Vargas, 2009 WL 4041897 at *4.

(44.) Id at *5.

(45.) Id at *5.

(46.) 2009 WL 3153044 at *7-*8.

(47.) Id at *9.

(48.) Id.

(49.) 391 Ill App 3d at 431, 908 NE2d at 184, vacd People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009).

(50.) Id.

(51.) Id at 433, 908 NE2d at 185.

(52.) Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009).

(53.) People v Alexander, 2009 WL 4572959 at *10.

(54.) 2009 WL 489329 (3d D 2009).

(55.) Alexander, 2009 WL 45 72959 at *11-*18.

(56.) 2009 WL 4030950 at *9.

(57.) Id at *10.

(58.) Id at *13.

(59.) Id at *13-*14.

(60.) Belknap, 2009 WL 4030943 at *17.

(61.) Id at *17-*19.

(62.) Id at *19.

(63.) Id.

(64.) Owens, 394 Ill App 3d at 154, 914 NE2d at 1286; Blanton, 2009 WL 3838848 at *5; Stump, 385 Ill App 3d at 522, 896 NE2d at 909, vacd People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(65.) 385 Ill App 3d at 522, 896 NE2d at 909, vacd,

People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(66.) Id.

(67.) Id.

(68.) People v Stump, 233 Ill 2d 592, 914 NE2d 490 (2009).

(69.) Blanton, 2009 WL 3838848 at *4-5.

(70.) 394 Ill App 3d at 154, 914 NE2d at 1286.

(71.) Id at 153, 914 NE2d at 1285.

(72.) Id at 151, 914 NE2d at 1284.

(73.) Id at 153, 914 NE2d at 1285.

(74.) 234 Ill 2d 173, 917 NE2d 401 (2009).

(75.) Id at 185-186, 917 NE2d 401. Under both the United States and Illinois Constitutions, defendants have a right to trial by a fair and impartial jury. At first glance, it would appear that Rule 431(b) stems from these constitutional mandates, particularly in light of the Illinois Supreme Court's finding in Zehr that these principles are "vital to the selection of a fair and impartial jury." In Glasper, however, the Illinois Supreme Court found that the defendant's right stems only from the court's power to regulate the conduct of the circuit courts. The Glasper court's logic rested on the fact that pre-amendment Rule 431(b) questioning was optional and, thus, could not be fundamental. However, because the 2007 amendment created a sua sponte duty in every criminal jury trial in Illinois, there may be a persuasive argument that a trial court's failure to comply with that rule constitutes a deprivation of a defendant's fundamental constitutional right to a fair and impartial jury.

(76.) Id at 202, 917 NE2d 401.

(77.) Id at 200, 917 NE2d 401. In both Graham and Wilmington, the first district concluded that Glasper is inapplicable to post-amendment cases, as the supreme court emphasized that its holding was limited to pre-amendment cases.

(78.) Id at 216, 917 NE2d 401. (Burke dissenting).

(79.) Id.

(80.) People v Matchem, 233 Ill 2d 583; 914 NE2d 487 (2009); People v Anderson, 233 Ill 2d 565, 914 NE2d 487 (2009); People v Dillard, 233 Ill 2d 572, 914 NE2d 487 (2009); People v Loan Ngoc Bui, 233 Ill 2d 569, 914 NE2d 488 (2009); People v Roberson, 233 Ill 2d 588, 914 NE2d 488 (2009); People v Williams, 233 Ill 2d 596, 914 NE2d 488 (2009); People v Harris, 233 Ill 2d 576, 914 NE2d 489 (2009); People v Alexander, 233 Ill 2d 565, 914 NE2d 489 (2009); People v Yusuf, 233 Ill 2d 598, 914 NE2d 489 (2009); People v Stump, 233 Ill 2d 592, 14 NE2d 490 (2009); People v Wright, 233 Ill 2d 597, 914 NE2d 490 (2009).

(81.) People v Thompson, Order No 109033, allowing the State's petition for leave to appeal (November 25, 2009).

(82.) People v Thompson, No 1-07-2891 (1st D) (July 16, 2009). In Thompson, the appellate court found that the trial court failed to strictly comply with Rule 431(b), where it committed a "Jeopardy" error. In large part, the court followed its decision in Anderson, apparently relying on a plain-error analysis. However, similar to Vargas, the Thompson court left open the possibility that forfeiture may be relaxed in this area, because Rule 431(b) concerns the trial court's conduct.

Geoffrey Burkhart is an assistant appellate defender in the Office of the State Appellate Defender, First District. In 2007 and 2008 he was editor-in-chief of the DePaul Law Review. He thanks Michael Gentithes, Douglas Hoff, Brian Koch, Kathryn Richards, Jeremy Roe, Patrick Ross, Sean Southern, and Michael Wilson for their insights into Rule 431(b), and Beth for her love and support.
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Title Annotation:Illinois
Author:Burkhart, Geoffrey
Publication:Illinois Bar Journal
Date:Feb 1, 2010
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