delivered the judgment of the court, with opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion.
Justice Karmeier dissented, with opinion.
OPINION
After a jury trial in the circuit court of Peoria County, defendant Aaron Jamar Houston was convicted of the offense of armed robbery (720 ILCS 5/18 — 2(a) (West 2000)). The circuit court imposed a sentence of 20 years’ imprisonment. The appellate court affirmed his conviction and sentence in all respects. 363 Ill. App. 3d 567. We granted leave to appeal. 210 Ill. 2d R. 315. For the reasons set forth below, we remand the cause to the circuit court with directions.
BACKGROUND
The charges against defendant arose from an armed robbery of a restaurant on July 11, 2002. The case was tried before a jury. Before trial began, the court inquired of the State and defense counsel as to their preferences regarding recording of the voir dire of the jury:
“[THE COURT:] Counsel, what do you want to do relative to having a court reporter take the actual voir dire; do you wish to have it recorded or not?
[Defense Counsel:] I don’t need it recorded.
[State:] No, People waive.
THE COURT: Then the court reporter will be waived for the actual taking of the voir dire. [To the court reporter:] When I read the list of witnesses and put the 12 in the box, then you’re free to go.
[Defense Counsel:] Judge, subject to coming up—
THE COURT: That’s right, she’ll be available.”
Voir dire commenced without being recorded by the court reporter. The court went back on the record after the 12 jurors had been picked to indicate that at that point there was only one prospective juror remaining as a possible alternate. The court stated that it was too late in the day to request additional prospective jurors, so either the parties could agree to go to trial with a single alternate juror if the final prospective juror was acceptable, or return the following day, pick two alternate jurors and proceed at that point. Defense counsel and the State each indicated that it would be acceptable to go to trial with a single alternate juror. After confirming that this was acceptable to both parties, the court stated: “Okay. And I take it you continue your waiving of the court reporter for the voir dire for the alternate?” Defense counsel and the State each assented, and the court reporter was again excused. The alternate was apparently deemed acceptable, and the case proceeded to trial.
At the close of evidence, the jury found defendant guilty of armed robbery. The trial court then set June 13, 2003, as the date for posttrial motions and sentencing. On April 24, 2003, defendant sent the court a handwritten pro se motion for a new trial, which the court received on April 28. In addition to pointing out alleged inconsistencies in the testimony that formed the basis of his conviction, defendant also complained regarding the composition of his jury. Specifically, defendant, who is African-American, wrote to the judge as follows:
“I know you tried to be fair as possible and you was but I felt a predjudice [sic] and discrimanating [sic] patter[n] going on with the jury. I’m not predjudice [sic] but I strong feel some of the jury was. I mean let’s look at it eleven white people and one black person ***.”
Defendant further alleged, in his pro se motion, that the lone African-American juror, a woman, stated during voir dire that she did not know defendant, but that defendant subsequently learned that this juror did in fact know him. Defendant alleged, in addition, that the prosecution wanted this person on the jury because her brother had recently been murdered. In defendant’s view, she had strong feelings “about guns and people being shot.”
On May 14, 2003, defense counsel filed a motion for a new trial. In this motion, defense counsel stated, in relevant part: “That of the twelve jurors in this cause, there was only one black and when the court asked said black lady *** if she knew anyone, either the attorneys or any of the proposed witnesses or the Defendant^] she stated she did not know the Defendant^] but in reality said Defendant has subsequently learned that said black lady did know him.”
On June 13, 2003, the trial court held the previously scheduled hearing on the motion for a new trial. During this hearing, defense counsel emphasized, in particular, the allegation regarding the African-American juror “who denied, in effect, that she knew anyone, any of the parties, the Court, or anyone else.” The State responded that defendant never made this objection during voir dire. The State added that “there were several peremptory challenges used, at least seven by the defense; I think six by the State.”
The trial court denied the motion for a new trial. In explaining this decision, the trial court specifically addressed the claim regarding the African-American juror who allegedly denied knowing defendant. The trial court ruled that there was no factual basis for this claim.
After denying the motion for a new trial, the court conducted a sentencing hearing. During this hearing, the State acknowledged that, according to the evidence presented at trial, defendant “was not the individual that was armed.” The presentence investigation report indicated that defendant, who was born on November 15, 1984, left high school in 1999 when he was about 15 years of age. At the conclusion of the hearing, the trial court sentenced defendant to 20 years’ imprisonment.
Defendant appealed, and a divided appellate court affirmed his conviction and sentence. 363 Ill. App. 3d 567. The court found that the evidence was sufficient to uphold defendant’s conviction, found no reversible error in the fact that the voir dire was not recorded, and denied defendant’s claim of ineffective assistance of counsel.
In her dissent, Justice McDade pointed to Supreme Court Rule 608(a)(9), which requires that “court reporting personnel *** take the record of the proceedings regarding the selection of the jury.” 210 Ill. 2d R. 608(a)(9). Justice McDade noted that the failure to record voir dire in the case at bar ran directly counter to Rule 608(a)(9), which, in Justice McDade’s view, was mandatory. She stated: “This is a rule of criminal procedure and, as is the case with all the supreme court’s rules that fall into that category, it is mandatory; it is a rule of procedure, not a mere suggestion.” (Emphasis in original.) 363 Ill. App. 3d at 579 (McDade, J., dissenting). According to Justice McDade, the cause should have been remanded for a new trial.
ANALYSIS
Before this court, defendant raises two distinct challenges to his conviction. The first concerns the voir dire proceedings. The second relates to trial counsel’s failure to submit a jury instruction. With regard to the voir dire proceedings, defendant contends that (1) his trial counsel was ineffective for waiving the court reporter during voir dire, and (2) the trial court improperly allowed voir dire to proceed with no court reporter present, thereby depriving defendant of due process.
We turn first to defendant’s assertions of error during voir dire. Both of his arguments in this regard concern the failure to record proceedings in violation of Rule 608 (210 Ill. 2d R. 608).
Preliminarily, we note that article VI of our supreme court rules governs criminal cases, and within article VI, Rule 608 deals with the record on appeal. Subsection (a)(9) of Rule 608, which focuses on voir dire, provides that, in cases where a sentence of death is not imposed:
“[T]he court reporting personnel *** shall take the record of the proceedings regarding the selection of the jury, but the record need not be transcribed unless a party designates that such proceedings be included in the record on appeal.” (Emphasis added.) 210 Ill. 2d R. 608(a)(9).1
Rule 608 does not define the terms “record” and “transcribe.” Webster’s Third New International Dictionary defines “record” as “an account in writing or print *** intended to perpetuate a knowledge of acts or events” and, more specifically, “an official contemporaneous memorandum stating the proceedings of a court of justice.” Webster’s Third New International Dictionary 1898 (2002). The term “transcribe” is defined as “to make a written copy of.” Webster’s Third New International Dictionary 2426 (2002). While Black’s Law Dictionary appears to conflate the terms “record” and “transcript” (Black’s Law Dictionary 1279 (7th ed. 1999) (defining “record” as including a “transcript of the trial or hearing”)), the sense of Rule 608(a)(9) clearly is that “record,” as in “take the record of the proceedings regarding the selection of the jury,” is to be differentiated from a transcription. The rule states: “the record [of the proceedings regarding the selection of the jury] need not be transcribed unless a party designates that such proceedings be included in the record on appeal.” 210 Ill. 2d R. 608(a)(9). The plain meaning of the rule is that, in cases other than those where a sentence of death is imposed, a record of the proceedings regarding the selection of the jury is to be taken but that a transcription, or copy, need not be made unless requested by a party for inclusion in the record on appeal. Of necessity, if the voir dire record that Rule 608(a)(9) requires to be taken must be transcribed, if requested, for inclusion in the record on appeal, this initial record must be complete enough to be so transcribed and included. Our construction of Rule 608(a)(9) is in accord with the previous version of the rule, which stated, in pertinent part: “the court reporter shall take full stenographic notes of the proceedings regarding the selection of the jury, but the notes need not be transcribed unless a party designates that such proceedings be included in the record on appeal.” (Emphases added.) 177 Ill. 2d R. 608(a)(9).
This court has never dealt expressly with Rule 608(a)(9). However, People v. Thompkins, 121 Ill. 2d 401 (1988), a case which was cited to us by the State, has been relied upon by our appellate court in determining whether the failure to ensure the recording of voir dire, in violation of Rule 608(a)(9), constituted ineffective assistance of counsel. People v. Ash, 346 Ill. App. 3d 809 (2004); People v. Morris, 229 Ill. App. 3d 144 (1992). In Thompkins, we rejected the defendant’s claim that his counsel was per se ineffective for failure to insist upon the presence of a court reporter during voir dire. Citing People v. Steel, 52 Ill. 2d 442, 452 (1972), we concluded that “the mere failure to obtain the presence of a court reporter during voir dire does not constitute a per se presumption of ineffectiveness of counsel.” Thompkins, 121 Ill. 2d at 448. In reaching this decision, we noted that the criteria for determining incompetency of counsel are “strict.” Thompkins, 121 Ill. 2d at 447. We explained that, under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant arguing ineffective assistance must show not only that his counsel’s performance was deficient but that the defendant suffered prejudice as a result. In support of his ineffective-assistance claim, the defendant in Thompkins pointed to United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984), which discussed, among other things, “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658, 80 L. Ed. 2d at 667, 104 S. Ct. at 2046. Thompkins concluded that the defendant’s reliance on Cronic was “in error.” Thompkins, 121 Ill. 2d at 448. The court explained: “[T]he failure to insist upon the presence of the court reporter during a portion of the voir dire proceedings is not such an extreme and limited circumstance, such as the total absence of counsel, where prejudice can be presumed.” Thompkins, 121 Ill. 2d at 448.
This same principle — that prejudice may not be presumed from the mere failure to ensure the recording of voir dire — is reflected in People v. Ash, 346 Ill. App. 3d 809 (2004), and People v. Morris, 229 Ill. App. 3d 144 (1992). In Ash and Morris, also cited to us by the State, our appellate court followed Thompkins and concluded that the failure to ensure the reporting of voir dire, in violation of Rule 608(a)(9), was not, in and of itself, ineffective assistance. Ash, 346 Ill. App. 3d at 813; Morris, 229 Ill. App. 3d at 157. We agree with the holdings in Thompkins, Morris and Ash — and in Steel, also cited to us by the State — that a waiver of the court reporter for voir dire is not per se ineffective assistance of counsel, and we hereby reaffirm this principle.
In the case at bar, defendant, citing to Strickland, argues ineffective assistance based on his counsel’s waiver of the court reporter during voir dire. Unlike the defendant in Thompkins, defendant here does not argue that prejudice should be presumed. Indeed, defendant in the instant case does not cite to Cronic, which held that prejudice could be presumed in some instances, such as the total absence of counsel.
Under the two-prong Strickland test for determining whether assistance of counsel has been ineffective, a defendant must show that (1) his counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant in that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. People v. Evans, 209 Ill. 2d 194, 219-20 (2004); People v. Peeples, 205 Ill. 2d 480, 512-13 (2002). In demonstrating, under the first Strickland prong, that his counsel’s performance was deficient, a defendant must overcome a strong presumption that, under the circumstances, counsel’s conduct might be considered sound trial strategy. Peeples, 205 Ill. 2d at 512. With regard to the second prong of Strickland — the prejudice prong — a reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome. Evans, 209 Ill. 2d at 220; Peeples, 205 Ill. 2d at 513. In order to prevail on a claim of ineffective assistance, a defendant must satisfy both the performance and the prejudice prongs of Strickland. Evans, 209 Ill. 2d at 220.
As previously noted, defendant’s trial counsel twice waived the presence of the court reporter during voir dire: first, when the court asked (before the start of trial) if counsel wanted a court reporter present and counsel answered that none was needed; and second, when the court asked the same question (later the same day) regarding voir dire of the alternate juror and counsel repeated his waiver of the court reporter.
The result of this waiver was that, contrary to the dictates of Rule 608(a)(9), no record was made of what occurred during jury selection. In the case at bar, this lack of a voir dire record is consequential. As previously indicated, defendant complained in his pro se motion for a new trial about the composition of his jury.2 In that motion, after noting that there were 11 white persons but only one African-American person on the jury, defendant stated: “I felt a predjudice [sic] and discrimanating [sic] patter[n] going on with the jury.” This language echoes language in Batson v. Kentucky, 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723 (1986), which held that it was a violation of the equal protection clause for the prosecution to use a peremptory challenge to exclude a prospective juror solely on the basis of race. Though defendant’s pro se motion made no mention of Batson,3 his complaint about the racial composition of his jury was a Batson claim.4 It would be manifestly unfair to require precise legal reasoning, including citation to authority, in a pro se claim drafted, as was the instant claim, by an 18-year-old defendant who lacked even a high school diploma. See, e.g., People v. Smith, 268 Ill. App. 3d 574, 580 (1994) (pro se postconviction petitions are given more liberal reading than are formal pleadings prepared by counsel).
The difficulty here is that, having raised — or attempted to raise — a Batson claim, defendant had no voir dire record with which to support it. According to defendant, the lack of a voir dire record made it virtually impossible for him to pursue his Batson claim on appeal. In defendant’s view, “it would not be possible for appellate counsel, or the appellate court, to assess a Batson issue without a full recording of the entire voir dire proceedings.” Defendant asserts that his counsel’s waiver of the court reporter for voir dire satisfies both prongs of the Strickland test.
Faced with the unusual factual background of this case, we attempt to determine whether trial counsel’s performance constituted ineffective assistance. We look first to whether this conduct fell below an objective standard of reasonableness. As noted, this court’s rules provide that “the court reporting personnel *** shall take the record of the proceedings regarding the selection of the jury.” (Emphasis added.) 210 Ill. 2d R. 608(a)(9). Counsel’s waiving of the court reporter in the case at bar ran directly counter to Rule 608(a)(9), which was promulgated precisely to avoid the type of situation we now face. Here, on appeal, defendant’s appellate counsel expressly refers to the Batson claim initially raised by defendant at the trial level. Appellate counsel cannot pursue this claim on appeal, however, because of trial counsel’s failure to comply with our Rule 608(a)(9).
An examination of the procedure used in assessing Batson claims illustrates the difficulties resulting from trial counsel’s waiver of the court reporter. Batson established a three-step process for evaluating alleged discrimination in jury selection:
“First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. [Citation.] Second, once such a showing has been made, the burden shifts to the State to provide a race-neutral explanation for excluding each of the venirepersons in question. [Citation.] Defense counsel may rebut the proffered explanations as pretextual. [Citation.] Finally, the trial court determines whether the defendant has met his burden of demonstrating purposeful discrimination.” People v. Williams, 209 Ill. 2d 227, 244 (2004).
At the first stage, where the defendant is required to make a prima facie showing of discrimination, courts are to consider “all relevant circumstances” in deciding whether such a case has been established. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. This court has held that the following are among the relevant factors to be considered in determining whether the defendant has demonstrated purposeful discrimination against African-Americans:5
“(1) racial identity between the defendant and the excluded venirepersons; (2) a pattern of strikes against African-American venirepersons; (3) a disproportionate use of peremptory challenges against African-American venirepersons; (4) the level of African-American representation in the venire as compared to the jury; (5) the prosecutor’s questions and statements during voir dire examination and while exercising peremptory challenges; (6) whether the excluded African-American venirepersons were a heterogeneous group sharing race as their only common characteristic; and (7) the race of the defendant, victim, and witnesses.” People v. Williams, 173 Ill. 2d 48, 71 (1996).
Consideration of several of these factors, particularly the second, third, fifth and sixth, would be difficult if not impossible without a record of the voir dire proceedings.
In such circumstances, a defendant — such as defendant here — faces serious obstacles in establishing a prima facie case of discrimination at the posttrial stage. It follows that, without a record of the proceedings during jury selection, the defendant would encounter the same, or greater, obstacles in pursuing a Batson claim on appeal. The appellate court would find it just as difficult as the trial court to review such a claim. For these reasons, counsel’s waiver of the court reporter in the case at bar falls below an objective standard of reasonableness. We can conceive of no possible strategic advantage that might have been gained by waiving the court reporter for voir dire. Defendant has satisfied the performance prong of the Strickland test by showing that his counsel’s performance was deficient.
Having concluded that counsel’s performance was professionally deficient, we turn to the question of whether this conduct resulted in prejudice to defendant. Under Strickland, a defendant establishes prejudice by showing that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Peeples, 205 Ill. 2d at 513; Evans, 209 Ill. 2d at 219-20.
In the case at bar, we cannot say that, as a result of counsel’s error, there is a reasonable probability that the result would have been different. We cannot say this because, without a voir dire record — the absence of which is directly attributable to counsel’s deficient performance — we have no way of determining the extent to which defendant was prejudiced. Nevertheless, given the seriousness of defendant’s claim of racial discrimination in jury selection, we are reluctant simply to deny defendant all relief based solely on our inability, because of the lack of a voir dire record, to determine the extent of the prejudice suffered by defendant. In our view, a middle course is preferable.
In Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995), as a result of the delay between the defendant’s conviction and his direct appeal in state court, portions of the trial record, “including a lengthy in camera voir dire of prospective jurors,” were missing. Simmons, 44 F.3d at 1164. Faced with this situation, the state appellate court “remanded the case for the limited purpose of reconstructing the record, and the judges who had presided over the jury selection and the remainder of the trial and sentencing held reconstruction hearings.” Simmons, 44 F.3d at 1164.6 Similarly, in In re Taylor, 272 Wis. 2d 642, 679 N.W.2d 893 (App. 2004), also a Batson case, the proceedings on voir dire were not recorded. On remand, the trial court in Taylor held a hearing “at which the voir dire process was ‘reconstructed’ from testimony of the assistant district attorney and defense counsel, handwritten notes, and a jury panel roster.” Taylor, 272 Wis. 2d at 648, 679 N.W.2d at 896.
Finally, in People v. Hudson, 195 Ill. 2d 117 (2001), this court remanded a Batson gender-discrimination case to the circuit court for a hearing to determine if the defendant, who had failed to raise the gender-discrimination claim in his direct appeal, had shown the necessary prejudice to excuse his procedural default. The defendant in Hudson, who was initially sentenced to death, had raised a Batson race-discrimination claim at the trial level and on direct appeal, but this claim was rejected. While the defendant’s petition for certiorari was pending before the United States Supreme Court, that court decided J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), which extended Batson to prohibit gender discrimination in jury selection. The defendant in Hudson filed a postconviction petition in which he claimed, relying on J.E.B., that a female African-American venireperson who had been struck by the State had been excluded on the basis of gender.7 Because the defendant had failed to raise this gender-discrimination claim in his direct appeal, this court conducted a cause-and-prejudice analysis to determine if the defendant’s forfeiture of the claim would be excused. We concluded that the defendant had shown cognizable cause for his failure to raise the claim earlier. However, we also concluded that “an evidentiary hearing [was] needed in order to determine if defendant ha[d] established the needed prejudice to excuse the procedural default.” Hudson, 195 Ill. 2d at 127. We stated: “without findings from such a hearing, it is impossible to determine whether defendant has established the requisite prejudice.” Hudson, 195 Ill. 2d at 137. We therefore remanded the cause to the circuit court for a hearing to determine if the State would have struck the African-American female “even in the absence of any gender-related reasons.” Hudson, 195 Ill. 2d at 136-37. We noted that, if the hearing demonstrated that the State would have struck the venireperson even in the absence of the gender-related reason, the defendant could not be said to have established prejudice and his claim should be denied. If, on the other hand, the State was unable to prove this proposition, the defendant would have met his burden of showing prejudice and relief should he granted.
The appropriate solution in the case at bar, similar to Simmons, Taylor and Hudson, is to remand this cause to the circuit court for a hearing to reconstruct the voir dire record. We adopt this course, rather than simply denying defendant relief, out of concern for the seriousness of defendant’s race-discrimination claim. See Simmons, 44 F.3d at 1168 (remanding for the granting of conditional habeas relief after noting “the seriousness” of the defendant’s Batson claim and the court’s inability to review the claim absent a transcript of the voir dire proceedings). As the Court in Batson explained, “[t]he core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race.” Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In this instance, given the risk that a denial of relief might amount to such approval, we choose to remand the cause simply to determine whether sufficient information about the voir dire may be gathered to ensure that racial discrimination in jury selection is not condoned by this court.
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. People v. Thompkins, 121 Ill. 2d 401, 448 (1988). 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. See, e.g., People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003). 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.” Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). The situation here confronting us illustrates the importance of our rules and the need for compliance with them.
We hold that where, as in the unusual case before us, a defendant attempts to raise in the trial court a Batson claim of discrimination in jury selection, and the claim may not be pursued because trial counsel waived the presence of the court reporter for voir dire, in violation of our Rule 608(a)(9), resulting in the absence of a voir dire record, the appropriate course, in the first instance, is to remand to the circuit court for an attempt to reconstruct the record of the proceedings regarding the selection of the jury.
The dissent criticizes this approach as “ill conceived” and argues instead that we should simply affirm. Affirmance in this instance would do nothing to address the difficulty, clearly illustrated in the case at bar, that results from noncompliance with Rule 608(a)(9). The dissent itself recognizes the need for such compliance. The dissenting justice notes, as do we, that our rules, including Rule 608(a)(9), Eire not mere suggestions but rather have the force of law. The dissenting justice adds, again agreeing with us, that “the presumption must be that [our rules] are to be obeyed and enforced as written.” 226 Ill. 2d at 164. However, the dissent’s only answer to the difficulty presented by noncompliance with Rule 608(a)(9) is that we should “amend the rule’s provisions to include appropriate consequences for failure to follow it.” 226 Ill. 2d at 164. This might be an appropriate remedy for future cases, but our task here is to address the case that is actually before us. In this instance, as we have stated, the proper course is to remand to the circuit court for an attempt to reconstruct the voir dire record. This is far preferable to the affirmance approach urged by the dissent, which amounts to acquiescence in the face of noncompliance.
Because of our disposition of this case, we need not address, at this time, defendant’s other claims that (1) the trial court improperly allowed voir dire to proceed with no court reporter present, thereby depriving defendant of due process, and (2) trial counsel failed to tender a jury instruction on identification, thereby rendering ineffective assistance.
A number of cases cited by the State held that a trial court’s failure to provide a court reporter during voir dire was not a violation of due process. People v. Ash, 346 Ill. App. 3d 809, 813 (2004); People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003); People v. Morris, 229 Ill. App. 3d 144, 156 (1992); People v. McClurg, 195 Ill. App. 3d 381, 388 (1990). Because we do not address defendant’s due process claim, we need not consider these cases’ conclusions regarding this issue.
Pursuant to this court’s supervisory authority, we retain jurisdiction and remand this cause to the circuit court of Peoria County for a hearing to reconstruct the voir dire record. This reconstructed record shall be filed with the clerk of this court within 90 days of the date that this decision becomes final.
CONCLUSION
The cause is remanded to the circuit court with directions to hold a hearing to reconstruct the record of the voir dire proceedings which took place at trial.
Cause remanded with directions.
Prior to 1986, subsection (9) of paragraph (a) provided only that the “judgment and sentence” in a criminal case were among the items to be included in the record on appeal. 87 Ill. 2d R. 608(a)(9). Paragraph (a) was amended in 1986. As amended, subsection (9) required, among other things, that court reporters in cases where a sentence of death was not imposed were “to take notes of the jury-selection proceedings, but the transcription of such notes [was] required only when requested by a party.” 210 Ill. 2d R. 608, Committee Comments, at cclxvii. Though subsection (a)(9) has undergone minor modifications since then, it has remained essentially unchanged.
Defendant also alleged that the lone African-American juror, a woman, stated during voir dire that she did not know defendant, but defendant subsequently learned that she did in fact know him. This allegation of personal acquaintance is separate and distinct from defendant’s claim of racial discrimination in jury selection. We agree with the trial court that there was no factual basis in the record for defendant’s personal-acquaintance allegation, which plays no part in our decision in the case at bar.
Defense counsel’s motion for a new trial also made no mention of Batson. This is not surprising, given that, as a result of counsel’s waiver of the court reporter for voir dire, there was no record of the proceedings regarding jury selection. Had counsel asserted a Batson claim in his motion for a new trial, he would ultimately have had to argue his own ineffective assistance in order to explain the complete lack of a voir dire record with which to support the claim. In view of this situation, it might have been advisable for the trial court to appoint different counsel to represent defendant in his posttrial motion. See People v. Moore, 207 Ill. 2d 68 (2003); People v. Krankel, 102 Ill. 2d 181 (1984). Defendant’s trial took place over two days in mid-April 2003, and the hearing on defendant’s motion for a new trial was held on June 13, 2003. Had different counsel been appointed to represent defendant in his posttrial motion, it likely would have been a fairly simple matter to reconstruct the record of voir dire at that time, only two months after trial.
In its brief to this court, the State does not dispute that defendant’s complaint about the racial composition of his jury was a Batson claim.
While Batson and much of its progeny deal with discrimination based on race, Batson has been extended to bar “discrimination in jury selection on the basis of gender.” J.E.B. v. Alabama ex reí. T.B., 511 U.S. 127, 146, 128 L. Ed. 2d 89, 107, 114 S. Ct. 1419, 1430 (1994).
The defendant’s conviction and sentence were subsequently affirmed on direct appeal in state court, and his petition for habeas corpus relief was denied by the federal district court. The defendant appealed, and the court of appeals concluded that the defendant’s Batson claim of discrimination in jury selection could not be reviewed effectively “without a transcript of the voir dire to allow the reviewing court to examine whom the assistant prosecutor excluded and why.” Simmons, 44 F.3d at 1168. The court emphasized “the seriousness” of the Batson claim, and remanded for the granting of habeas relief unless the State agreed to retry the defendant before a properly selected jury. Simmons, 44 F.3d at 1167-68, 1171.
In attempting to show, at trial, that the reasons for excluding the venireperson were race-neutral, the State had articulated a potentially gender-related reason.