Failure to Ask a Question Required by Illinois Supreme Court Rule 431(B)
In People v. Glasper, 234 Ill. 2d 173, 917 N.E.2d 401, 334 Ill. Dec. 575 (June 18, 2009), the Illinois Supreme Court was faced with an issue which is almost identical to the issue that we face here: what to do with a trial court's failure to ask a question required by Supreme Court Rule 431(b). Glasper, 234 Ill. 2d at 189.
In Glasper, our supreme court answered that question by holding that the failure was not a fundamental error, and that a harmless error analysis applied. Glasper, 234 Ill. 2d at 199-200.
Following the precedent set by our supreme court, we reach the same holding.
In Glasper, the rule at issue was the 1997 version of Rule 431(b), which required the trial court to ask about the Zehr principles, only if the defense counsel requested an inquiry. Glasper, 234 Ill. 2d at 187.
In Glasper, the defense counsel did make the request, making the result, namely that the trial court was required to ask. Glasper, 234 Ill. 2d at 189 ("once a defendant made a request, the decision to question the venire" became "a requirement").
Faced with the failure to ask a required question, our supreme court held that this error did "not rise to the level of structural error." Glasper, 234 Ill. 2d at 199. Our supreme court "declined to find that a violation of Rule 431(b) is per se reversible." Glasper, 234 Ill. 2d at 200.
Instead our supreme court held that the error did "not require automatic reversal" and that it was "amenable to harmless error review." Glasper, 234 Ill. 2d at 200.
In support of its holding, our supreme court observed the questioning set forth in Rule 431(b) was "not uniformly required in other state and federal jurisdictions. Glasper, 234 Ill. 2d at 198.
In Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411-12, the supreme court addressed whether (1) the trial court's failure to comply with preamended Rule 431(b) requires a reviewing court to presume prejudice and automatically reverse defendant's conviction or (2) the error is subject to harmless-error analysis.
While the supreme court held the trial court erred by not fully complying with Rule 431(b), it (1) declined to find that a violation of Rule 431(b) is per se reversible error and (2) concluded the error was harmless where (a) no evidence was presented that the jury was biased and (b) the evidence against the defendant was overwhelming. Glasper, 234 Ill. 2d at 199-200, 917 N.E.2d at 417-18.