eCases

.
To support his claim that the court erred by failing to give IPI Criminal 4th No. 24-
25.09X, the defendant relies upon the committee note to the instruction. That committee note
states that in appropriate circumstances both IPI Criminal 4th No. 24-25.09 and IPI Criminal 4th
No. 24-25.09X should be given. IPI Criminal 4th No. 24-25.09X, Committee Note.
In People v. Hopp, the Illinois Supreme Court found that the court erred when it failed to
give a pattern jury instruction defining first degree murder where the defendant was charged with
conspiracy to commit first degree murder. Hopp,

. In that
case, the jury was instructed under IPI Criminal 4th No. 6.03 of the elements of the crime of
conspiracy. Hopp,

. The committee note to that instruction
states that the court must also give an instruction defining the offense that is the alleged subject
of the conspiracy. Hopp,

. In that case, the court found that it
11
was mandatory that the trial court give an instruction defining first degree murder. Hopp,

. However, the court ultimately concluded that the court’s error did
not rise to the level of plain error because the evidence was overwhelming and the error did not
severely threaten the fairness of the defendant’s trial. Hopp,

209 Ill. 2d at 18-19

805 N.E.2d at 1200

.
In this case, the committee note to IPI Criminal 4th No. 24-25.09X does not mandate that
it be given whenever IPI Criminal 4th No. 24.25.09 is given. Rather, the note states that both
instructions should be given in appropriate cases. The decision as to whether both instructions
are appropriate given the specific alleged facts of a case is left to the trial court’s discretion. See
People v. Sims,

374 Ill. App. 3d 427

, 431,

871 N.E.2d 153

, 156-57 (2007). Under the
circumstances of this case, we find no abuse of discretion in the court’s failure to sua sponte give
the jury instruction at issue.
However, even if we were to find that the trial court abused its discretion by failing to sua
sponte give IPI Criminal 4th No. 24-25.09X, any error did not threaten the fundamental fairness
of the trial. The defendant argues that he was denied a fair trial because the jury instructions
directed the jury’s finding as to an essential element of the case. However, a determination of
whether the defendant initially provoked the use of force was not an essential element of the
charged crime or his claim of self-defense. The jury was instructed on the elements and burdens
of proof of first degree murder, second degree murder, and self-defense. Under the evidence
presented in this case, the defendant’s claim of self-defense hinged on the reasonableness of the
defendant’s use of force, not on whether he had a duty to escape before inflicting that force.
Regardless of whether the jury believed that the defendant was the initial aggressor and provoked
12
Polnitz into hitting him on the back of the head, the defendant testified that he responded by
stabbing Polnitz three times. The critical question of the defendant’s self-defense claim was
whether his use of that force was reasonable in these circumstances. Thus, the trial court’s
failure to sua sponte instruct the jury of IPI Criminal 4th No. 24-25.09X did not direct the jury’s
finding as to an essential element in this case and did not create a risk that the jury misunderstood
the applicable law.
Furthermore, we disagree with the defendant’s proposition that instructing the jury on an
issue, but not as to the opposite scenario, directed the jury’s finding on that issue or “ascribed [a]
label to the defendant.” The jury was not stripped of its role as fact finder by the failure to give
both IPI Criminal 4th No. 24-25.09 and IPI Criminal 4th No. 24-25.09X. Looking at the jury
instructions as a whole, the jury was clearly instructed of its duty to be the final arbiter of the
facts, including the determination of whether the defendant was the initial aggressor. The jury in
this instance was not misinformed of the applicable law, and was not stripped of its role as finder
of fact. Thus, the defendant’s forfeiture of this issue cannot be excused under Rule 451(c).
Alternatively, the defendant contends that trial counsel was ineffective by failing to
request IPI Criminal 4th No. 24-25.09X. To sustain a claim of ineffective assistance of counsel,
a defendant must prove that defense counsel’s performance fell below an objective standard of
reasonableness, and that this performance actually prejudiced the defendant. People v. Johnson,

218 Ill. 2d 125

, 143,

842 N.E.2d 714

, 725 (2005). To prove prejudice, the defendant must show
that but for counsel’s deficient performance, there was a reasonable probability that the trial
result would have been different. Johnson, 218 Ill. 2d at 143-44, 842 N.E.2d at 725.
In this case, the defendant has not shown that he would have been found not guilty or that
13
the jury would have found him guilty of the lesser offense of second degree murder if counsel
had requested the subject jury instruction. As previously discussed, the question of whether the
defendant was the initial aggressor was presented to the jury. Furthermore, a determination of
this issue does not affect the jury’s apparent conclusion that the defendant did not believe,
reasonably or unreasonably, that his use of force was necessary to prevent imminent death or
great bodily harm to himself. Thus, we find that defendant’s claim of ineffective assistance of
counsel fails.
Finally, the defendant claims that he was denied his right to a trial by an impartial jury
because the jury voir dire was inadequate. The defendant maintains that the trial court’s failure
to strictly comply with Supreme Court Rule 431(b) was plain error and requires reversal of his
conviction. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431, eff. May 1, 2007.
The State contends that the court’s error was harmless.
Supreme Court Rule 431(b) was passed to ensure compliance with the supreme court’s
decision in People v. Zehr,

103 Ill. 2d 472

469 N.E.2d 1062

 (1984). Zehr held that it was
reversible error where the trial court refused to ask questions proffered by the defendant
concerning the presumption of innocence and the State’s burden to prove the defendant guilty
beyond a reasonable doubt, and the subject matter of those questions was not otherwise included
during voir dire. Zehr,

103 Ill. 2d at 476-78

469 N.E.2d at 1063-64

. Initially, the rule provided
that the court shall ask potential jurors whether they understand and accept certain principles if
the defendant requests that the court do so. The rule was amended in 2007, deleting the phrase
“If requested by the defendant,” from the beginning of the paragraph. Effective May 1, 2007,
Rule 431(b) provides:
14
“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.”
Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431, eff. May 1, 2007.
We review de novo issues concerning the application of a supreme court rule. People v. Reed,

376 Ill. App. 3d 121

, 125,

875 N.E.2d 167

, 171 (2007).
Here, the trial court informed the potential jurors during voir dire of the principles set
forth in Rule 431(b), but did not specifically ask them if they understood and accepted these
principles. However, the defendant did not object, request that the court ask the jurors whether
they accepted the principles, or raise the issue in a posttrial motion and, thus, forfeited the issue
for review. People v. Allen,

222 Ill. 2d 340

, 350,

856 N.E.2d 349

, 351 (2006). Therefore, we
must determine whether the defendant’s forfeiture of the issue may be excused under the plain
error rule. 134 Ill. 2d R. 615(a).
“Plain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a). “The plain-error doctrine
15
does not instruct a reviewing court to consider all forfeited errors.” People v. Herron,

215 Ill. 2d 167

, 177,

830 N.E.2d 467

, 474 (2005). A reviewing court will reach a forfeited error affecting
substantial rights in two circumstances. Herron,

215 Ill. 2d at 178

. First, the
court may consider a forfeited error “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.” Herron,

215 Ill. 2d at 178

. Second, a reviewing court may consider a forfeited error “where the
error is so serious that the defendant was denied a substantial right, and thus a fair trial.” Herron,

215 Ill. 2d at 179

.
The first step in any plain-error analysis is to determine whether clear or obvious error
occurred. People v. Piatkowski,

225 Ill. 2d 551

, 565,

870 N.E.2d 403

, 410-411 (2007). “‘The
supreme court rules are not merely suggestions to be complied with if convenient but rather
obligations which the parties and the courts are required to follow.’” Reed, 376 Ill. App. 3d at
125,

875 N.E.2d at 171

, quoting Medow v. Flavin,

336 Ill. App. 3d 20

, 36,

782 N.E.2d 733

, 746-
47 (2002). In this case, the court admonished the jury venire of the Rule 431(b) principles, but
did not specifically ask the potential jurors, either individually or in a group, whether they
understood and accepted these principles, as required by the rule. Thus, the trial court erred.
The defendant does not argue that the evidence was closely balanced. Thus, we limit our
plain error analysis to the second prong of the Herron test. Herron,

215 Ill. 2d at 179

. The defendant maintains that the court’s error was so fundamental and of such magnitude
that he was denied a fair trial. The defendant has the burden of persuading this court that the
court’s error severely threatened the fairness of his trial. Herron,

215 Ill. 2d at 187

830 N.E.2d at 480

, citing Hopp,

209 Ill. 2d at 12

805 N.E.2d at 1197

.
16
In Glasper, No. 103937 (June 18, 2009), the Illinois Supreme Court considered whether
the trial court’s failure to comply with the then-applicable version of Rule 431(b)(4) required
automatic reversal or whether the error was amenable to harmless error review. The defendant in
that case argued that the court’s failure to ask the requested question under Rule 431(b)(4)
deprived him of his constitutional right to a fair trial before an impartial jury. Glasper, No.
103937, slip op. at 10. The Glasper court ruled that the trial court’s failure to comply with the
previous version of Rule 431(b)(4) was not a structural error and, thus, automatic reversal was
not required. Glasper, No. 103937, slip op. at 18. A structural error is a systemic error that
erodes the integrity of the judicial process and undermines the fairness of the proceedings.
Glasper, No. 103937, slip op. at 16. When defining “structural errror,” the Glasper court quoted
language in Herron that describes the substantial rights prong of the plain error test. Glasper, No.
103937, slip op. at 16. Thus, we conclude that the discussion in Glasper regarding structural
error is applicable to our consideration of the second prong of the Herron test.
In reaching its conclusion that the error at issue in Glasper was not automatically
reversible error, the court stated that the failure to ask a jury venire whether they understood and
accepted that the defendant’s failure to testify cannot be held against him “does not involve a
fundamental right, or even a constitutional protection.” Glasper, No. 103937, slip op. at 12.
Rejecting the defendant’s argument that his constitutional rights were violated by the court’s
error, the court acknowledged that Rule 431(b) was “designed to help ensure that defendants are
tried before a fair jury,” however “we cannot say that Rule 431(b)(4) questioning is indispensable
to a fair trial.” Glasper, No. 103937, slip op. at 16. Rather, the error in Glasper and the instant
case “involves a right made available only by rule” of the Illinois Supreme Court. Glasper, No.
17
103937, slip op. at 12. Further, the court stated, “[t]he violation of a supreme court rule does not
mandate reversal in every case.” Glasper, No. 103937, slip op. at 13. The Glasper court also
recognized that it was free to determine whether, as a matter of state law, the failure to question
the venire in accordance with Rule 431(b) was an error so severe that reversal was required,
regardless of whether the error was structural under federal law. Glasper, No. 103937, slip op. at
18. The court declined to do so. Glasper, No. 103937, slip op. at 18.
We acknowledge that Glasper considered the previous version of Rule 431(b), which is
not at issue here. The only difference between the older version of the rule and the current
version is that the court is now required in all cases to ask prospective jurors of their
understanding and acceptance of the listed principles, regardless of whether a defendant requests
any such questioning. We do not think that this difference precludes application of the Glasper
rationale to the instant case.
The Glasper opinion also noted that in People v. Emerson,

122 Ill. 2d 411

522 N.E.2d 1109

 (1987), the supreme court “moved away from the portion of the Zehr holding which stated
that the relevant questions should be covered ‘in the course of interrogation on voir dire,’ and
that the failure to ask these questions amounts to ‘prejudicial error.’ ” Glasper, No. 103937, slip
op. at 16, quoting People v. Zehr,

103 Ill. 2d 472

, 477-78,

469 N.E.2d 1062

, 1064 (1984). In
Emerson, the supreme court considered whether the trial court erred by refusing to ask
prospective jurors whether they understood that an accused is presumed to be innocent and
whether they had any objection to that principle. Emerson,

122 Ill. 2d at 425-27

522 N.E.2d at 1114-15

. The trial court declined the defendant’s request to ask those questions because the
court believed it had sufficiently covered those principles in other remarks. Emerson,

122 Ill. 2d 18

at 425,

522 N.E.2d at 1114

. The trial court had instructed the prospective jurors on the Zehr
principles and asked the jury panel whether they could follow the law as instructed by the court.
Emerson,

122 Ill. 2d at 426

522 N.E.2d at 1114

. The supreme court concluded that the trial
court’s instructions coupled with this question satisfied Zehr. Emerson,

122 Ill. 2d at 427

522 N.E.2d at 1115

.
In this case, at the beginning of the voir dire, the trial court informed the jury pool of the
four principles set forth in Rule 431(b). Additionally, the court questioned the potential jurors
regarding the first of these principles, albeit in a slightly different form, when it asked “Do you
have any bias against a person merely because he has been charged with a criminal offense?”
The court also asked the jurors a series of questions regarding their ability to follow the court’s
instructions, decide the case fairly and without prejudice, and wait until the conclusion of all
evidence to formulate an opinion. In light of these circumstances, we do not believe that the trial
court’s failure to strictly comply with Rule 431(b) denied the defendant an impartial jury and,
thus, a fair trial. See Glasper, No. 103937 (June 18, 2009); see also Emerson,

122 Ill. 2d at

426-
27,

522 N.E.2d at 1114-15

.
The defendant also argues that the court undermined the importance of the Rule 431(b)
principles when it stated that these principles were fundamental principles, but not instructions
of law, which the jury would receive at the end of the case. The court’s comments seem to be
taken from the language of Rule 431. Rule 431(b) calls the relevant principles “principles.” In
addition Rule 431(a) directs the court to “acquaint prospective jurors with the general duties and
responsibilities of jurors,” and cautions the court not to question jurors on matters of law or
instructions. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(a), eff. May 1,
19
2007. We decline to find that the court’s decision to use language from Rule 431 caused the
jurors to believe that they need not concern themselves with the principles stated by the court.
CONCLUSION
Based upon the above analysis, we find that the trial court’s failure to sua sponte instruct
the jury under IPI Criminal 4th No. 24-25.09X was not plain error. In addition, trial counsel was
not ineffective for failing to request that instruction. Finally, although the trial court erred by
failing to question the prospective jurors about their acceptance of the principles set out in Rule
431(b), that failure did not render the defendant’s trial fundamentally unfair. Accordingly, the
judgment of the Peoria County circuit court is affirmed.
Affirmed.
SCHMIDT, J. concurring.
JUSTICE McDADE, concurring in part, dissenting in part:
I concur in that portion of the majority’s decision finding that: (1) the trial court’s failure
to instruct the jury, sua sponte, of I.P.I. Criminal 4th No. 24-25.09X was not plain error, and (2)
defendant’s claim of ineffective assistance of trial counsel fails on its merits. I dissent, however,
from the finding that the trial court’s failure to comply with Supreme Court Rule 431(b) (Rule
431(b)) (Official Reports Advance Sheet No. 8 (April 11, 2007) R. 431(b), eff. May 1, 2007)
does not entitle defendant to a new trial.
I begin my analysis --which is as much policy, philosophy and precedent as legal context-
- with the premise that the supreme court rules play a significant role in the fair operation of our
judicial system and, therefore, that the court does not either make or change its rules for no
reason or with no intended impact.
20
We employ an adversarial process in our courts. That process relies on the philosophy
that if the parties bring their dispute before an impartial fact finder, and evidence is presented and
tested through direct- and cross-examination, and the applicable law is applied, the truth will be
revealed. Through the education of prospective lawyers, the promulgation of rules of
professional conduct, the maintenance of a registration and disciplinary system for members of
the bar, the requirement of free legal assistance for indigent criminal defendants, and even the
requirement that attorneys either provide pro bono service hours or make monetary contributions
to not-for-profit agencies providing free legal services in civil cases, the supreme court strives to
maintain a basic level of competence and reasonable professional performance among lawyers
and judges in the state. But lawyers and judges are human, and there will undoubtedly be
variations in knowledge, skill, available time, and work ethic that will not infrequently skew the
truth-seeking function of the courts.
It is, I believe, the quest for a level playing field which best serves the proper functioning
of the adversarial process that has caused the supreme court to adopt rules relating to the
procedures to be followed in the courts of Illinois. I believe, subject, of course, to correction
from the supreme court, that that purpose is the reason why the court so often reiterates that its
rules are mandatory and not merely aspirational. People v. Henderson,

217 Ill. 2d 449

, 471,

841 N.E.2d 872

, 884 (2005) (“Such a conclusion is further supported by this court's familiar maxim
that ‘[t]he rules of court we have promulgated are not aspirational. They are not suggestions.
They have the force of law, and the presumption must be that they will be obeyed and enforced
as written.’ Bright v. Dicke,

166 Ill. 2d 204

, 210,

652 N.E.2d 275

 (1995)). Thus, strict
compliance with the rules of this court is generally required. Village of Lake Villa v. Stokovich,
21

211 Ill. 2d 106

, 116,

810 N.E.2d 13

 (2004)”).
It would seem to me that if I am correct that the rules are integral to our system of justice,
there should be a corresponding presumption that, absent clear evidence to the contrary, the
violation of a rule results in some level of prejudice to the party who has lost its benefit.
Although such a presumption would be rebuttable, it should reasonably be the burden of the
violator to prove the violation was not harmful, not of the victim to prove that it was. But see,
People v. Herron,

215 Ill. 2d 167

, 187,

830 N.E.2d 467

, 480 (2005) (The defendant has the
burden of persuading this court that the court’s error severely threatened the fairness of his trial.)
It has also been my observation that rules are added because of unmet systemic needs,
and are amended as a result of flaws in either their execution or enforcement. It is within this
general context that I consider whether the 2007 amendment to supreme court Rule 431(b)
compels a different decision than that reached when the supreme court considered the 1997
amendment to that rule in People v. Glasper, No. 1039937, 2009 Ill LEXIS 933 (June 18, 2009).
I have to admit that the Glasper decision itself causes me pause because it appears to so
easily support the majority’s reasoning. Nonetheless, there is language in People v. Zehr,

103 Ill. 2d 472

469 N.E.2d 1062

 (1984), which is the supreme court’s seminal decision on the principles
that are the subject of Rule 431(b), and in Glasper itself, to permit an analysis that is less
permissive and rationalizing of error.
There are three reasons why I think a different outcome from that in Glasper is both
appropriate and necessary. The first is the fact and the progression of the amendments to Rule
431(b). The second relates to the mandatory application of the supreme court rules generally and
this rule specifically. And third, the nature and character of the Zehr principles themselves
22
strongly argue that absolute compliance with the most recent version of the rule should be
required.
Here it is undisputed that the trial court did not comply with the rule. The State conceded
there was error; the majority so finds, and I agree. It is also undisputed that the defendant did not
preserve the error. The issue he raises under Rule 431(b) is, therefore, forfeited. People v. Allen,

222 Ill. 2d 340

, 350,

856 N.E.2d 349

, 351 (2006). He can only secure consideration and relief if
we can find plain error. 134 Ill. 2d R. 615(a).
In People v. Herron, the supreme court delineated two situations (a two-pronged test) in
which a reviewing court can reach an unpreserved error: first, where the evidence is closely
balanced, regardless of the nature of the error; or, second, where the error is so serious that the
defendant was denied a substantial right and a fair trial, regardless of the closeness of the
evidence. People v. Herron,

215 Ill. 2d 167

, 178-79,

830 N.E.2d 467

, 475 (2005). The evidence
in the instant case was not closely balanced, so we consider the availability of relief under the
second prong of the plain error analysis. As the court explained, this second prong “guards
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

, 839 N.E.2d at 479.
The same analytical framework–that is, analysis under the second prong–was followed by
five panels of the First District (People v. Anderson,

389 Ill. App. 3d 1

904 N.E.2d 1113

 (2009);
People v. Graham, No. 1-08-0444,

2009 Ill. App. LEXIS 689

913 N.E.2d 99

 (July 20, 2009);
People v. Wilmington, No. 1–07–2518,

2009 Ill. App. LEXIS 936

 (Sept. 24, 2009); People v.
Arredondo, No. 1-07-2825 (October 8, 2009); People v. Madrid, No. 1-08-0324 (October 8,
2009)) and one panel of the Second District (People v. Blair, No. 2-077-0862,

2009 Ill. App. 23

LEXIS 944 (Sept. 29, 2009)). The appellate panels in these cases all found that the second prong
of the plain error test had been satisfied, reversed the defendant’s conviction, and ordered a new
trial.
By contrast, I am aware of two cases reaching contrary results: an earlier decision by this
same divided panel in the instant case (vacated pursuant to supervisory order) and the Fourth
District’s decision in People v. Stump,

385 Ill. App. 3d 515

896 N.E.2d 904

 (2008). In both of
those cases, the error was found to be harmless and the convictions were affirmed. The
majority’s newly revised decision, relying on Glasper, again provides defendant with no relief,
this time finding no plain error.
The error committed by the trial court in this case was in failing to require each juror to
demonstrate, in response to questions asked by the court as required in Rule 431(b), that he or
she fully understood and accepted the bedrock principles integral to the selection of an impartial
jury and, thus, a fair trial. For the reasons that follow, I would find that the error satisfies the
second prong of the plain error test and, therefore, cannot be harmless.
1.     Progression of enactment and amendment of Rule 431(b).
Section (b) was added to Rule 431 in 1997 to ensure compliance with the principles
enunciated by the court in its 1984 decision in Zehr. People v. Anderson,

389 Ill. App. 3d 1

, 8,

904 N.E.2d 1113

, 1119 (2009) (“Before that, in 1997, Rule 431 was amended to ensure
compliance with the Zehr principles by changing the court's voir dire requirements from
discretionary to compulsory by amending the word ‘may’ to ‘shall’ “). The 1997 change actually
represented a compromise. The Supreme Court Rules Committee had recommended that the trial
courts be required to question the jurors on each of the four Zehr principles. People v. Glasper,
24

2009 Ill. LEXIS 933

, *13-14, citing Illinois Supreme Court Rules Committee, Recommendations
to the Supreme Court of Illinois (March 1997). The supreme court, however, rejected that
proposal, instead adding subsection (b), requiring the trial courts to undertake such questioning
only if they were specifically requested by the defendant to do so.
Considering the simple fact of the variance between the recommendation of the rules
committee and the change adopted by the court in 1997, and the fact that the supreme court
rejected one in favor of the other, there is a clear conclusion to be drawn that the two approaches
to ascertaining whether the jurors understood the Zehr principles were (and are), in fact,
different. Then in 2007, the supreme court again amended Rule 431(b), this time adopting the
procedure it had rejected ten years earlier in 1997. Given this sequence of events, it is logical to
conclude that this newest amendment to the rule was added to address specific concerns, and that
it makes a meaningful or significant change from the 1997 version which the court considered in
Glasper.
In fact, every amendment to a rule is presumed to have a purpose, and that presumption
requires the courts to consider the need for the amendment and the purpose it serves. People v.
Allen,

313 Ill. App. 3d 842

, 846,

730 N.E. 2d 1216

 (2000). And, indeed, the Glasper court
implicitly acknowledged a different purpose, stating that its decision did not apply to the most
recent amendment to the rule. Glasper,

2009 Ill. LEXIS 933

 at *35 (“this holding is limited to
the version of Rule 431(b)(4) that was in effect at the time of the instant trial, and would not
necessarily apply to subsequent versions of the rule”).
The Glasper court also reserved its option of finding plain error under the second prong
of the plain error test. Glasper,

2009 Ill. LEXIS 933

 at *22-23. The court drew a distinction,
25
stating that even though the error in Glasper did not involve “a fundamental right, or even a
constitutional protection,” but rather “a right made available only by rule of this court *** [and]
was not afforded to all defendants–only those defendants who chose to exercise it;” “a trial
before a biased jury would constitute a structural error not subject to harmless error review.”
Glasper,

2009 Ill. LEXIS 933

at *22. *35. Specifically, the Glasper court said:
“We emphasize that this holding is limited to the version of
Rule 431(b)(4) that was in effect at the time of the instant trial, and
would not necessarily apply to subsequent versions of the rule."
(Emphasis added.) Glasper, No. 103937, 2009 Ill. LEXIS at *34-
35
The court went on to explain that its holding was limited to the 1997 version of the rule,
and specifically, to subsection (4) of section (b), and stated that a violation of that rule could
constitute reversible error "[i]f the facts of this case demonstrated that the trial court’s failure to
question the venire in accordance with Rule 431(b)(4) resulted in defendant being tried before a
biased jury *** as a trial before a biased jury would constitute structural error." The court
continued:
"We reject the idea that the trial court’s failure to conduct Rule
431(b)(4) questioning makes it inevitable that the jury was biased,
particularly when the record before us demonstrates that the
jurors in this case were both admonished and instructed against
forming an adverse inference against defendant based on his
decision not to testify. To do so would require us to presume that
26
citizens sworn as jurors ignore the law and the jury instructions
given to them. This notion is contrary to our precedent which
instructs us to make the opposite presumption. [Citation.]"
(Emphasis added.) Glasper, No 103937, 2009 Ill. LEXIS at *35-
36.
However, while it had previously chosen not to "mandate Zehr questioning in every
case," that is no longer the rule.
"As previously stated, when crafting the version of Rule 431(b)
applicable here, this court had the opportunity to mandate Zehr
questioning in every case, but chose not to. Instead, this court
made the right to Zehr questioning permissive. The court
intentionally structured Rule 431(b) so that the trial court’s default
position was to refrain from Zehr questioning. We conclude that a
violation of Rule 431(b), as applied in this case, does not require
automatic reversal and is amenable to harmless error review.”
(Emphasis added.) Glasper, No 103937, 2009 Ill. LEXIS at *35-
36.
The inference I would draw is that the supreme court recognizes that, if the jurors are not
questioned in accordance with the current mandatory version of the rule, there is a likelihood that
the jury may be biased, that structural error may occur, and that the conviction should be
reversed.
I would find that, given the supreme court’s specific reservation of the issue in the instant
27
case, and also by logical conclusion based on the court’s own permutations of its rule, that
Glasper does not foreclose a finding of plain error and a decision to reverse the conviction and
remand for a new trial.
So, given Glasper, how do we apply Rule 431(b) to this case? The rule as most recently
amended states:
“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.” (Emphasis added.) 177 Ill. 2d
R. 431(b). Official Reports Advance Sheet No. 8 (April 11, 2007),
R. 431(b), eff. May 1, 2007.
Under the newly-modified rule, every judge in a criminal case is charged with a duty to
conduct a fair trial; and, to that end, has an affirmative obligation, sua sponte, to make sure each
28
juror has a working knowledge of and commitment to the fundamental requirements of the civic
task he or she has undertaken. The court must fulfill that obligation set out in Rule
431(b)–during the jury selection process, before the trial begins. Zehr,

103 Ill. 2d at 477

.
Presumably, the obligation rests with the judge because, at the beginning of trial,
throughout the proceedings, and in giving the instructions of law prior to deliberations, it is
constantly reiterated that while the jury is the finder of fact, the court is the giver of the law.
Only the judge’s pronouncements of law have the weight of authority. Moreover, the existence
and language of the rule strongly suggest that the Zehr principles are so fundamental to
producing an unbiased jury, as our system defines it, that instructing the jurors on them should
not be dependent on the knowledge or skill or preparation time of the defendant’s attorney, but
should be assured to every defendant in every criminal court in our state by placing the
responsibility directly on the trial judges.
2.      The mandatory nature of the supreme court rules generally and the specific
language of mandate found in Rule 431(b) itself
We recognize that the court stated in Glasper that “[t]he violation of a supreme court rule
does not mandate reversal in every case,” citing to its decision in People v. Houston,

226 Ill. 2d 135

874 N.E.2d 23

 (2007). However, our supreme court has expressly stated on numerous
occasions that its rules “ ‘ “are not aspirational. They are not suggestions. They have the force
of law, and the presumption must be that they will be obeyed and enforced as written.” ‘ “
Rodriguez v. Sheriff’s Merit Comm’n,

218 Ill. 2d 342

, 353,

843 N.E.2d 379

, 385 (2006); quoting
Roth v. Illinois Farmers Insurance Co.,

202 Ill. 2d 490

, 494,

782 N.E.2d 212

, 215 (2002);
quoting Bright v. Dicke,

166 Ill. 2d 204

, 210,

652 N.E.2d 275

, 277-78 (1995). The Glasper
29
court expressly reaffirmed this position. Glasper, No 103937, 2009 Ill. LEXIS at 16.
The Stump court’s ruling failed to give effect to this directive and instead inappropriately
expanded the supreme court’s limited holding in People v. Houston,

226 Ill. 2d 135

874 N.E.2d 23

 (2007). The Houston court “emphasize[d] the limited scope of [its] decision.” Houston,

226 Ill. 2d at 152

874 N.E.2d at 34

. Specifically, the court stated:
“We emphasize the limited scope of our decision. We do
not conclude that the failure to obtain the presence of a court
reporter during voir dire creates, in itself, a per se presumption of
ineffective assistance of counsel. [Citation.] Nor do we conclude
that the mere failure to record voir dire, without any claim of error
in the jury selection process, requires a remand for reconstruction
of the jury selection proceedings. [Citation.] This is not to say,
however, that our rules are unimportant. We point out that the
difficulty presented in the case at bar could have been avoided had
the trial judge simply followed the mandate of Rule 608(a)(9).
This court has often noted that our rules are not mere suggestions.
Rather, ‘[t]hey have the force of law, and the presumption must be
that they will be obeyed and enforced as written.’ [Citation.] The
situation here confronting us illustrates the importance of our rules
and the need for compliance with them.” Houston,

226 Ill. 2d at 152

874 N.E.2d at 34

.
The above language illustrates the narrow reach of the Houston court’s holding, clearly
30
showing that it is merely an exception to the general rule that supreme court rules must be
enforced as written. The supreme court has the authority to make exceptions to its rules. We, at
the appellate level, do not. Instead, we are bound to follow supreme court precedent, which
requires strict compliance with and enforcement of supreme court rules as written.
If the supreme court wishes to make an exception to this general rule to hold that
violations of the 2007 amended version of Rule 431(b) have no consequence, as it did in Houston
for Rule 608(a)(9) violations, and in Glasper for violations of Rule 431(b)’s 1997 version, it can.
However, until it does, we are not at liberty to excuse this violation. It is axiomatic in our
judicial system that violations of law have consequences, at least in part to deter further
violations. In order to give full effect to Rule 431(b) as currently written, I believe we must
reverse defendant’s conviction and remand the matter for a new trial that affords the defendant
the protections the rule provides.
3.      The nature and character of the Zehr principles.
In support of its finding, the majority cites the Glasper court’s reliance on its decision in
People v. Emerson,

122 Ill. 2d 411

522 N.E.2d 1109

 (1987). (Slip op. at 18.) I acknowledge the
1987 holding in Emerson and the significance of the supreme court’s statement in Glasper that in
Emerson, it had “moved away from the portion of the Zehr holding which stated that the relevant
questions should be covered ‘in the course of interrogation on voir dire,’ and that the failure to
ask these questions amounts to ‘prejudicial error,’ ” Glasper, No 103937, slip op. at 16. I
would note, however, that Emerson predates all versions of Rule 431(b), most particularly the
2007 amendment and all of the considerations that prompted the court to change the rule.
The nature and character of the Zehr principles play an integral role in the fairness of our
31
trials and the integrity of our system. The Zehr court described the principles as follows:
“We are of the opinion that 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. If a juror has a prejudice against any of these
basic guarantees, an instruction given at the end of the trial will
have little curative effect. *** We agree with the appellate court
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’ [citation], and although they need not have
been asked in precisely the form submitted, the subject matter of
the questions should have been covered in the course of
interrogation on voir dire.” Zehr,

103 Ill. 2d at 477

.
The supreme court has thus told us that (1) these four principles are essential to seating a
fair and impartial jury and are, therefore, integral to a fair trial in our judicial system; (2) each
juror must understand each principle and his or her obligation to follow it throughout the trial; (3)
for this reason, ensuring the jurors’ understanding must be undertaken at the beginning of the
trial, not at the end of the process; and (4) although no precise form of the questions is required,
the subject matter must be covered.
What the Zehr court did not tell us, but what, if we think about it, each of us knows, is
32
that: while these principles are familiar to and understood by those of us within the system, to
potential jurors drawn from a pool of persons unfamiliar with trial procedures, they are inherently
counter-intuitive.
• What do you mean, we have to presume the defendant is innocent? Hasn’t he been
investigated, arrested, identified, arraigned, brought here in shackles, and aren’t we here
because all of these professionals believe he is guilty? How long does this presumption
last? And when do I get to “find” what we already know – that he’s guilty – and go
home?
• The State must prove him guilty beyond a reasonable doubt! If they doubted his guilt, he
(and we) wouldn’t be here. He should have to prove he didn’t do it, not the other way
around.
• What is a reasonable doubt? How does the presumption of innocence apply to how I
consider reasonable doubt?
• If your story is true, you want to tell it so everyone will know you are telling the truth. If
he won’t get on the stand and tell his story under oath, he must be lying.
To ensure that every juror knows that the very human biases they are influenced by outside
the courtroom cannot apply once they get in the jury box, we do what the supreme court has
modified Rule 431(b) to require. We tell them what the core rules governing their search for legal
truth are; and then we question them and encourage them to question us to ensure their
understanding of and their commitment to honoring and complying with those principles.
Without following the strictures of Rule 431(b), we can have no real confidence that we
have selected a panel of impartial jurors – men and women who have absorbed and acted within
33
the core principles by which we determine legal guilt. And yet, it is our assumption that the jurors
have done so that lies at the heart of the standard of review enunciated by the supreme court in
People v. Collins,

214 Ill. 2d 206

, 824 N..2d 262 (2005). We do not review the jurors’ verdict to
assess whether they followed the Zehr principles; rather, we assume they have done so, and thus
on review we are required to view their presumed factual findings in the light most favorable to
their verdict convicting the defendant. If we cannot be sure that the jurors have understood and
followed the Zehr principles, the reviewing courts are only compounding, rather than correcting,
any errors.
Our supreme court has told us repeatedly that empaneling a fair and impartial jury is
fundamental to the conduct of a fair trial and a fair and just verdict. Both our federal and state
constitutions guarantee trial by an impartial jury. U.S. Const., amends VI, XIV; Ill. Const. 1970,
art. I, §§ 8, 13. See also People v. Strain,

194 Ill. 2d 467

, 475,

742 N.E.2d 315

 (2000). I would
argue that the supreme court’s prescription for achieving that goal is fundamental, is imperative, is
structural, and a failure to follow it is an “error so serious that the defendant was denied a
substantial right and a fair trial, regardless of the closeness of the evidence.” Herron,

215 Ill. 2d at 178-79