Make sure you ask the right questions….

The trial court erroneously failed to ask potential jurors if they understood and accepted four basic constitutional guarantees afforded criminal defendants at trial.
The Illinois Appellate Court, 4th District, has reversed the armed robbery conviction of the defendant, Ahmed A. Yusuf. Champaign County Circuit Judge Thomas J. Difanis presided in the trial court.

In October 2007, Yusuf was convicted of armed robbery. The conviction was affirmed in November 2008. The Illinois Supreme Court denied the defendant’s petition for leave to appeal but issued a supervisory order directing the appeals court to vacate its order affirming the conviction and reconsider the case.

On reconsideration, the defendant argued that the procedure used by the trial court during voir dire failed to allow the venire an opportunity to respond to or be questioned about the juror’s understanding of the four basic constitutional guarantees afforded to criminal defendants at trial.

The appeals court cited a 1984 Supreme Court case, People v. Zehr, 103 Ill.2d 472), holding that a trial court erred during voir dire by refusing defense counsel’s request to ask questions about the state’s burden of proof, the defendant’s right not to testify and the presumption of innocence.

The Supreme Court then amended its Rule 431(b) to assure compliance with its decision in Zehr. The rule provides that a trial judge “shall” ask jurors, “individually or in a group,” if they understand and accept the constitutional guarantees. The rule also provides that the court “shall” provide each juror an opportunity to respond to specific questions about the principles.

During the voir dire in this case, the trial court discussed the constitutional principles but didn’t fully comply with Rule 431(b). “While the court advised the venire en masse of the four Zehr principles, it did not pose the specific questions of whether the jurors understood and accepted all four principles during voir dire,” the appeals court said. “As a result, the court … did not follow the mandate of Rule 431(b) and this failure to comply constituted error.”

The appeals court said the jurors in this case were never asked whether they understood and agreed that the defendant was not required to offer any evidence and that his failure to testify could not be held against him. The appeals court said a defendant’s right not to testify is possibly “the most critical guarantee under our criminal process and is vital to the selection of a fair and impartial jury that a juror understand this concept.”

While the trial court in this case advised the venire en masse or the Zehr principles, it didn’t pose specific questions of whether the jurors understood and accepted any of those principles, the appeals court said.

The appeals court said the trial court’s failure to fully comply with the amended version of Rule 431(b) caused a “complete breakdown of the judicial process that undermines this court’s confidence in the jury’s verdict.” The court’s error was so substantial that it affected the fundamental fairness of the proceeding and denied the defendant a substantial right — a fair trial, the appeals court said.

The appeals court reversed the trial court and remanded the case for a new trial.

People v. Ahmed A. Yusuf, No. 4-08-0034. Justice John T. McCullough wrote the court’s opinion with Justice Sue E. Myerscough and James A. Knecht concurring. Released April 13, 2010.

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