dissenting:
The question presented in this appeal is whether it is plain error for a trial court to fail to ask prospective jurors the questions required by Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). If we ignore our decision in People v. Zehr, 103 Ill. 2d 472 (1984), as the majority does, the answer to this question is “no.” But if we consider Zehr, as I believe we must under principles of stare decisis, then the answer is “yes.”
More than 25 years ago, in Zehr, this court considered whether a trial court was required to permit inquiry during voir dire as to whether the jurors understood and accepted that the State has the burden of proving the defendant guilty beyond a reasonable doubt, that the defendant’s right not to testify may not be held against him, and that the defendant is presumed innocent. Zehr, 103 Ill. 2d at 476. We concluded that such inquiry was required. We held:
“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. It is also vital to the selection of a fair and impartial jury that a juror who finds that the State has failed to sustain its burden of proof of guilt beyond a reasonable doubt have no prejudices against returning a verdict of not guilty. We note parenthetically that it is equally important that a juror who finds that the State has sustained its burden of proof have no prejudice against returning a verdict of guilty. *** '[Ejach 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’ (110 Ill. App. 3d 458, 461), 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.” (Emphases added.) Zehr, 103 Ill. 2d at 477.
The holding of Zehr was subsequently codified in Supreme Court Rule 431(b). See 177 Ill. 2d R. 431, Committee Comments, at Ixxix (Rule 431(b) “is intended to ensure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472 (1984)”). As originally adopted, Rule 431(b) required the trial judge to ask the Zehr questions only if requested by the defendant. However, in 2007, the members of this court voted unanimously to amend the rule so as to impose an affirmative duty on trial courts to ask potential jurors, in every case, whether they understood and accepted the 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.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.
As Zehr explained, the rationale for imposing this duty on trial courts is that only by asking these questions can any hidden biases which a potential juror might harbor be uncovered and that in the absence of such questions the defendant would be deprived of “ ‘his right to a fair and impartial jury.’ ” Zehr, 103 Ill. 2d at 477, quoting People v. Zehr, 110 Ill. App. 3d 458, 461 (1982).
In the case before us, the appellate court reversed defendant’s conviction for aggravated unlawful use of a weapon because the trial court did not question prospective jurors in accordance with amended Supreme Court Rule 431(b). Although the majority, like the appellate court, finds that the trial court violated Rule 431(b), the majority reverses the appellate court judgment. Relying on our decision in People v. Glasper, 234 Ill. 2d 173 (2009), the majority holds that adherence to our mandatory rule is not essential to a fair trial and, thus, a violation is not per se reversible error. 238 Ill. 2d at 610-11.
In Glasper, this court found that the preamended Rule 431(b) was subject to harmless-error review. I dissented in Glasper and in my dissent I expressed my belief that questioning which we held in Zehr to be “essential,” “vital,” and “at the heart” of uncovering bias and prejudice could not be deemed dispensable. Glasper, 234 Ill. 2d at 216-32 (Burke, J., dissenting, joined by Freeman, J.). I continue to maintain that belief.
The majority did not overturn Zehr in Glasper, nor does it do so in the present case. Indeed, the majority does not discuss or even cite Zehr in rendering its decision in this case. Yet the majority holdings, both in Glasper and here, are directly at odds with our pronouncements in Zehr. Compare, e.g., 238 Ill. 2d at 611 (“violation of [Rule 431(b)] does not necessarily render a trial fundamentally unfair”) with Zehr, 103 Ill. 2d at 477 (it is “vital to the selection of a fair and impartial jury” that the Zehr questions be asked). No attempt has been made to explain why stare decisis does not require us to follow Zehr.
In my view, the failure to ask questions which are not only mandated by this court but which are “vital to the selection of a fair and impartial jury” necessarily amounts to plain error. See People v. Cole, 54 Ill. 2d 401, 411 (1973) (“The right to a trial by an impartial tribunal is so basic that a violation of the right requires a reversal”). Because the majority rejects this conclusion and, in so doing, completely disregards our pronouncements in Zehr, I dissent.
JUSTICE FREEMAN joins in this dissent.