The Illinois Supreme Court has formally recognized what appellate cases and trial practioners deemed essential and basic guarantees for a fair trial. With the amended Rule 234 and Rule 431 concerning voir dire examination of jurors, the Illinois Supreme Court realized how confused jurors can be during trials and what problems face criminal trial practioners.
Amended Rule 234 now states that the court "shall permit the parties to supplement the examinations." Similarly, amended Rule 431 with its new language is intended to ensure compliance with the requirements of People v. Zehr, 103 Ill.2d 472, 469 N.E.2d 1062, 83 Ill.Dec. 128 (1984) and seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror’s willingness to follow the law. (Supreme Court Rule 431 committee comments).
The fundamental purpose of voir dire is to assure the selection of an impartial jury. People v. Mapp, 283 Ill.App.3d 979, 670 N.E.2d 852, 857, 219 Ill.Dec. 174, 179 (1st Dist. 1996); People v. Lanter, 230 Ill.App.3d 72, 595 N.E.2d 210, 213, 172 Ill.Dec. 147, 150 (4th Dist. 1992); United States v. McAnderson, 914 F.2d 934, 942 (7th Cir. 1990), cert. denied 115 S.Ct. 372, 130 L.Ed.2d 323.
Questioning during voir dire is a direct and helpful means of protecting a defendant’s right to an impartial jury. Illinois v. Morgan, 504 U.S. 719, 738, 112 S.Ct. 2222, 119 L.Ed.2d 492, 509 (1992). The assumption was questions posed by the court reasonably assure the discovery of a juror’s partialities or prejudices, so, there will be no error in refusing to allow the parties to ask specific supplemental questions. Mapp, 670 N.E.2d at 857, 219 Ill.Dec. at 179; People v. Foules, 258 Ill.App.3d 645, 630 N.E.2d 895, 904, 196 Ill.Dec. 730, 739 (1st Dist. 1993), appeal denied 156 Ill.2d 561, 638 N.E.2d 1119, 202 Ill.Dec. 925, cert. denied 115 S.Ct. 191, 130 L.Ed.2d 124; People v. Page, 196 Ill.App.3d 285, 553 N.E.2d 753, 756, 143 Ill.Dec. 46, 49 (3rd Dist. 1990).
Although the questions need not be asked in precisely the form submitted by the parties, the subject matter of the questions should be covered in the course of voir dire. People v. Cloutier, 167 Ill.2d 483, 622 N.E.2d 774, 783, 190 Ill.Dec. 744, 753 (1993), cert. denied 114 S.Ct. 1315, 127 L.Ed.2d 665; Morgan, 112 S.Ct. at 2230, 119 L.Ed.2d at 503; People v. Carreon, 225 Ill.App.3d 133, 587 N.E.2d 532, 538-9, 167 Ill.Dec. 263, 269-70 (1st Dist. 1992), cert. denied 145 Ill.2d 637, 596 N.E.2d 631, 173 Ill.Dec. 7; People v. Emerson, 122 Ill.2d 411, 522 N.E.2d 1109, 1114, 119 Ill.Dec. 250, 255 (1988), cert. denied 488 U.S. 900; Zehr, 469 N.E.2d at 1064, 83 Ill.Dec. at 130.
Generally, the scope of permissible supplemental questions submitted by the parties is still within the discretion of the court. People v. Hope, 168 Ill.2d 1, 658 N.E.2d 391, 404, 212 Ill.Dec. 909, 922 (1995), reh’g denied, cert. denied 116 S.Ct. 1855, 134 L.Ed.2d 954. There are, however, exceptions to this general rule. Carreon, 587 N.E.2d at 538, 167 Ill.Dec. at 269; Page, 553 N.E.2d at 756, 143 Ill.Dec. at 49. Essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. Illinois Supreme Court Rule 431; Mapp, 670 N.E.2d at 857, 219 Ill.Dec. at 179; People v. Whitehead, 169 Ill.2d 355, 662 N.E.2d 1304, 1326, 215 Ill.Dec. 164, 186 (1996), cert. denied 117 S.Ct. 587, 136 L.Ed.2d 517; People v. Martin, 271 Ill.App.3d 346, 648 N.E.2d 992, 999, 208 Ill.Dec. 70, 77 (1st Dist. 1995).
It is also vital to the selection of a fair and impartial jury that a juror who finds that the State failed to sustain its burden of proof of guilt beyond a reasonable doubt has no prejudice against returning a verdict of not guilty. People v. Mackey, 207 Ill.App.3d 839, 566 N.E.2d 449, 463, 152 Ill.Dec. 762, 776 (1st Dist. 1990), appeal denied 137 Ill.2d 669, 571 N.E.2d 153, 156 Ill.Dec. 566; Page, 553 N.E.2d at 756, 143 Ill.Dec. at 49; Zehr, 469 N.E.2d at 1064, 83 Ill.Dec. at 130. Similarly, it is vital that the jury would not have any prejudice against returning a verdict of guilty were they to find the State sustained its burden of proof. Mackey, 566 N.E.2d at 463, 152 Ill.Dec. at 776; Zehr, 469 N.E.2d at 1064, 83 Ill.Dec. at 130.
If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of trial will have little curative effect. Emerson, 522 N.E.2d at 1114, 119 Ill.Dec. at 255; Zehr, 469 N.E.2d at 1064, 83 Ill.Dec. at 130. Each of the questions in SCR 431 goes to the heart of a particular bias or prejudice that would deprive defendant of his right to a fair and impartial jury. Carreon, 587 N.E.2d at 538, 167 Ill.Dec. at 269; Zehr, 469 N.E.2d at 1064, 83 Ill.Dec. at 130. As a result, the trial court must ask during voir dire about these basic guarantees, the refusal of which is an abuse of discretion and results in prejudicial error. Page, 553 N.E.2d at 756, 143 Ill.Dec. at 49; Zehr, 469 N.E.2d at 1064, 83 Ill.Dec. at 130.
Supreme Court Rule 431 is not the end all, however. Other voir dire questions that must be allowed are those relating to the prospective jurors’ views concerning the death penalty. An issue during voir dire for a capital offense is whether a state trial court may, consistent with the Due Process Clause of the Fourteenth Amendment, refuse inquiry into whether a potential juror would automatically impose the death penalty upon conviction of the defendant. Morgan, 504 U.S. at 721, 119 L.Ed.2d at 497. Another way of phrasing the issue is whether on voir dire the court must, on defendant’s request, inquire into the prospective juror’s views on capital punishment. Morgan, 504 U.S. at 726, 119 L.Ed.2d at 501. Case law, including those from the Illinois Supreme Court as well as the United States Supreme Court, that specifically addressed this issue held that the Due Process Clause of the Fourteenth Amendment required an Illinois trial judge to inquire, when requested to do so, about life-qualifying questions, which concern whether a potential juror would automatically impose the death penalty upon conviction of defendant. People v. Brown, 172 Ill.2d 1, 665 N.E.2d 1290, 1303, 216 Ill.Dec. 733, 746 (1996), cert. denied 117 S.Ct. 398, 136 L.Ed.2d 313.
As a result, on voir dire a trial court must, at a defendant’s request, inquire into the prospective jurors’ views on capital punishment. Morgan, 504 U.S. at 736, 119 L.Ed.2d at 507. This is because a defendant is now entitled to inquire into prospective jurors’ opinions in support of the death penalty, or "life-qualify" a jury, to the same extent that the State is entitled to elicit information about prospective jurors’ opposition to the death penalty, or "death-qualify" a jury. Cloutier, 622 N.E.2d at 782, 190 Ill.Dec. at 752; Morgan, 112 S.Ct. at 2233, 119 L.Ed.2d at 506-7.
A juror’s simple recitation of impartiality would not suffice in the context of the death penalty. People v. Johnson, 159 Ill.2d 97, 636 N.E.2d 485, 500, 210 Ill.Dec. 53, 68 (1994), cert. denied 115 S.Ct. 436, 130 L.Ed.2d 348. Rather, a defendant must have an equal opportunity to use the voir dire to "lay bare the foundation" of a challenge for cause against those prospective jurors who would always impose the death penalty following conviction. Johnson, 636 N.E.2d at 500, 201 Ill.Dec. at 68; Morgan, 504 U.S. at 733-4, 112 S.Ct. at 2232, 119 L.Ed.2d at 506. A defendant can not exercise intelligently his challenge for cause against prospective jurors who would unwaveringly impose death after a finding of guilt unless he was given the opportunity to identify such persons by questioning them at voir dire about their views on the death penalty. Morgan, 504 U.S. at 733-4, 119 L.Ed.2d at 506. Absent that opportunity, the defendant’s right not to be tried by those who would always impose death would be rendered "nugatory and meaningless." Id.
More importantly, however, the belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual’s ability to follow the law. Morgan, 504 U.S. at 734-5, 119 L.Ed.2d at 506. Any juror who could impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law. Id. It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. Morgan, 504 U.S. at 735, 119 L.Ed.2d at 507. Or the juror could in all truth and candor respond affirmatively to general fairness and "follow the law" questions, personally confident that their dogmatic views are fair and impartial, while leaving the specific concern unprobed. Morgan, 504 U.S. at 734-5, 119 L.Ed.2d at 506. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception. Morgan, 504 U.S. at 735-6, 119 L.Ed.2d at 507. The risk that such jurors may have been empaneled and infected defendant’s capital sentencing is unacceptable in light of the ease with which that risk could have been minimized. Morgan, 504 U.S. at 736, 119 L.Ed.2d at 507.
The court must be alert to attempts to convert voir dire into a vehicle for indoctrinating prospective jurors as to a particular theory of defense. Lanter, 595 N.E.2d at 213, 172 Ill.Dec. at 150. This is because despite the clear language of the rule and the judicially pronounced purpose of the jury selection process, reviewing courts continue to deal with attempts by prosecutors and defense lawyers to prejudice jurors on matters of law. Mapp, 670 N.E.2d at 857, 219 Ill.Dec. at 179. This is in direct violation of the rule as well as case law, which state that voir dire questioning may not be used as a means for pre-educating and indoctrinating prospective jurors as to a particular theory or defense or impaneling a jury with particular predispositions, nor may the questions concern matters of law or instruction. Mapp, 670 N.E.2d at 857, 219 Ill.Dec. at 179; Cloutier, 622 N.E.2d at 781, 190 Ill.Dec. at 751; Lanter, 595 N.E.2d at 213, 172 Ill.Dec. at 150; People v. Dow, 6240 Ill.App.3d 392, 608 N.E.2d 259, 263, 181 Ill.Dec. 186, 190 (1st Dist. 1992); People v. Bommersbach, 228 Ill.App.3d 877, 593 N.E.2d 783, 786, 170 Ill.Dec. 894, 897 (1st Dist. 1992), appeal denied 146 Ill.2d 634, 602 N.E.2d 460, 176 Ill.Dec. 806.
Voir dire questions particularized towards a specific criminal defense have been generally excluded. Mapp, 670 N.E.2d at 857, 219 Ill.Dec. at 179; Dow, 608 N.E.2d at 264, 181 Ill.Dec. at 191. However, just as the State is allowed to probe the venire for jurors who would not follow the law of capital punishment, the defendant must be allowed to identify and challenge those prospective jurors who would refuse to follow the statutory law of the insanity defense. Dow, 608 N.E.2d at 263, 181 Ill.Dec. at 190; People v. Stack, 112 Ill.2d 301, 493 N.E.2d 339, 344-5, 97 Ill.Dec. 676, 681-2 (1986), cert. denied 479 U.S. 870, 107 S.Ct. 236. Questions about the insanity defense, and not compulsion or self-defense, are allowed because the jury is going to be asked to apply an extraordinary and controversial legal test, against which many members of the community may be prejudiced. Mapp, 670 N.E.2d at 858, 219 Ill.Dec. at 180; Dow, 608 N.E.2d at 264, 181 Ill.Dec. at 191; Stack, 493 N.E.2d at 344, 97 Ill.Dec. at 681. Because the insanity defense is itself a subject of intense controversy, simply asking jurors whether they could faithfully apply the law as instructed is not enough to reveal juror bias and prejudice toward that defense. Id.
Inquiry into the feeling or viewpoint of the venire regarding such controversial legal propositions is consistent with a bona fide examination conducted so that the parties can intelligently exercise their prerogatives to challenge. Dow, 608 N.E.2d at 264, 181 Ill.Dec. at 191; Stack, 493 N.E.2d at 344, 97 Ill.Dec. at 681. As a result, when raising an insanity defense, the defendant has the right to have potential jurors asked whether they have any feelings concerning this particular defense. People v. Pasch, 152 Ill.2d 133, 604 N.E.2d 294, 306, 178 Ill.Dec. 38, 50 (1992), cert. granted 508 U.S. 959, 113 S.Ct. 2927, 124 L.Ed.2d 678, vacated 114 S.Ct. 337, 126 L.Ed.2d 245, cert. dismissed 114 S.Ct. 337, 126 L.Ed.2d 245.
When defendant’s questions do not attempt to state the law but merely probe for bias, it cannot be faulted for containing argumentative and misleading statements of law, the abusive practice put to rest by the original Rule 234. Dow, 608 N.E.2d at 263, 181 Ill.Dec. at 190; Stack, 493 N.E.2d at 344, 97 Ill.Dec. at 681. Thus, the defendant does have the right to have jurors questioned about their willingness to follow the law on the insanity defense. Mapp, 670 N.E.2d at 858, 219 Ill.Dec. at 180. It is for that reason that a prospective juror’s views on the insanity defense are an appropriate area of inquiry on voir dire. Cloutier, 622 N.E.2d at 781, 190 Ill.Dec. at 751.
Another specific area of law in which the parties may question prospective jurors during voir dire is on the law of accountability. The issue is whether the law of accountability is a subject jurors can be asked about, bearing in mind that the scope of voir dire is a matter for trial judge’s broad discretion. Mapp, 670 N.E.2d at 858, 219 Ill.Dec. at 180. The prosecutor does not instruct the jury as to applicable law of accountability when he merely inquires as to whether the jurors can follow the law even if the evidence reveals that the defendant did not actually do the shooting. Mapp, 670 N.E.2d at 659, 219 Ill.Dec. at 181; People v. Davis, 95 Ill.2d 1, 447 N.E.2d 353, 361 69 Ill.Dec. 136, 144 (1983). In that situation, the prosecutor’s comment does not improperly concern the law of accountability. Davis, 447 N.E.2d at 361, 69 Ill.Dec. at 144.
Although voir dire questions "shall not directly or indirectly concern matters of law or instructions" (107 Ill.2d R. 234), it is also not error to allow the prosecutor to briefly recite accountability principles and inquire as to whether potential jurors can follow the law as related to those principles. Mapp, 670 N.E.2d at 859, 219 Ill.Dec. at 181; People v. Johnson, 276 Ill.App.3d 656, 659 N.E.2d 22, 23, 213 Ill.Dec. 342, 343 (1st Dist. 1995). In that situation, the prosecutor’s inquiry does not improperly concern matters of law or instruction. Johnson, 659 N.E.2d at 23, 213 Ill.Dec. at 343.
Yet, not every affirmative defense is so controversial as to render voir dire questioning appropriate. Lanter, 595 N.E.2d at 213, 172 Ill.Dec. at 150. For example, self-defense is not controversial, so the trial court properly refused to question concerning it. Id, citing People v. Kendricks, 121 Ill.App.3d 442, 459 N.E.2d 1137, 1142, 77 Ill.Dec. 41, 46 (1984). Also, the defense of compulsion is not an appropriate subject of a voir dire question. Lanter, 595 N.E.2d at 213-4, 172 Ill.Dec. at 150-1, citing People v. Phillips, 99 Ill.App.3d 362, 425 N.E.2d 1040, 54 Ill.Dec. 823 (1981). However, voir dire questions posed by defense counsel regarding the venire’s feelings toward alcohol or drugs are properly probative of bias, and counsel should be permitted to put the question to prospective jurors. Lanter, 595 N.E.2d at 214, 172 Ill.Dec. at 151. This question does not violate Rule 234 because it does not touch upon matters of law or instruction. Id. It seeks only to determine whether prospective jurors would be biased. Id. Even if the trial court asks prospective jurors whether there is anything about the nature of the charges which would affect their ability to be fair and impartial and whether they can follow that law as instructed by the court, voir dire questions about general fairness and "follow the law" are not sufficient to create a reasonable assurance that any prejudice toward intoxicated persons or the intoxication defense would be disclosed. Id.
Because of these advancements in case law by both the United States Supreme Court and Illinois Courts, the Illinois Supreme Court has finally acknowledged the essential and basic guarantees of a fair trial. The amended Illinois Supreme Court Rules now recognize the problems that face trial practioners, but do not forget about a defendant’s right to also inquire about controversial legal issues such as insanity and accountability.
Steven W. Baker is DuPage County Public Defender. He is the President of the Illinois Public Defenders Association. He received his Undergraduate Degree in 1974 from Western Illinois University and his Law Degree in 1978 from Loyola University-Chicago.
The author acknowledges the assistance of Public Defender Intern Ruth Dan, a second year law student at DePaul University, in the preparation of this article.