his agenda number seven case number one all sex seven one four people of the state of illinois versus dan is an important issue as a trial practitioner and i see this case as having two fundamental issues one is whether supreme court rule for thirty one and to a large its civil counterpart to thirty four which are identical or mandatory if you read what the appellate court wrote the third district i think that the third district got it right the rule is mandatory the rule used to say that a trial court may allow counsel to directly question the prospective jurors in that that was subsequently changed by supreme court mandatory the second distribute it differently and i think the suggestion that it's directory to what this the judge ought to allow but not mandatory and i don't think that that's supported by the history of the rule plain reading of the rule i think the the more interesting issue and i think if you look at what the third district struggled with is what is the remedy if this rule is not followed and they looked to this court's decision in houston and noted in houston john before we get into the room desk and can we talk about mean that the rule is mandatory yes just a couple questions as to what is mandatory the rules that the court deems proper right right so isn't that w mandatory the how i would suggest that the way to read that as the court deems proper such direct inquiry is the court deems proper is that i think that that is going back to the direct inquiry in other words if an attorney is trying to incorporate the jurors is trying to ask you procreate questions i think that the judge would absolutely have  to either sustain an objection or to stop in korea and honor his or her own the judge can set reasonable limits on the inquiry the judge can stop mean choir e if it's oppressive or or is th something wrong with it but what i don't think the judge can do is say i know that the rule says shall but in this courtroom i don't allow one let me let me go to him to where i'm that's if if the judge wants to to say and i think you have to give the trial judges flexibility if it will count we have a lot of the big manufacturing stuff that kind of goes on if there's a big explosion at one of the plants  there's forty lawyers in the room and there's twenty defendants the judge might say you know this is really complex we're going to need a couple of days of questioning of these jurors in this case it's a little dui case i mean if the judge wants to say listen  each got ten minutes anybody has an objection shout it out and counsellor you know when called caging the jurors the judge has control the judge has discretion i don't have a problem with that i think that the judge should have  what is it your suggestion and let me read it without those words right and shell permit the parties to supplement the examination by direct inquiry for a reasonable period of time something that you say he can do depending upon proper would go directly back to the the words before direct inquiry so the court can deem and directing kori improper in the in less direct in that that just means may again that in this then there was then the rule really didn't change and mike my specific question goes to the rules at utah reconstruction that we can read something out of the statute and i don't see where your interpretation of the statute would be any different without those words in there because without it you know shell direct inquiry reasonable period of time length of examination by the court complex a case in the nature of the charges what does or the court shall deem proper it had to it has nothing to your analysis so i'm wondering what the words mean are there for some purpose right now i think the bits making clear that the court has discretion to control the inquiry that counsel is that is is allowed to me but i don't think if you look at it in the entirety of the sentence that it means that they who are in say that given the complexity of this case i don't think any direct inquiry is warranted because one one last question and i'm sure there is something that question in this case right of the jurors that self worth reported something right and it says that the of the prospective jurors and the rule starts out about the prospective jurors and i think this really gets the heart of of of what the amendment to the rule was intended to do and and why the rule was changed if what you're allowed to ass is only people who self report issues and i think the third district in the other case plainfield versus no wiki side that if you that if you what you're doing is you're calling on the jurors to sel report you're calling on the jurors who would otherwise probably be the least prejudice in other words we're only allowed to ask questions of somebody who will in an open court room with a judge watching say i disagree with you and i have a problem in i think that that that's not what the rule is intended to do because if you really look at it it you know can take the real world view of people walking up the steps going into the courtroom sitting down to be going to courtroom is an intimidating procedure certainly is for most people they don't know whether they'll get in trouble or not for disagreeing with the judge in what i'm saying is if you give us a fair opportunity to test ask some questions we can get some feedback from these people and then intelligent exerciser preemptory challenges if we have to sit there because these two questions if you look at the record after she completed her board year i asked me i suggest certain additional questions rest certain additional questions and was said and and was told no but you did have the appe initially to submit written questions to the judge for her to ask and then after those were asked asked can i follow up on those and that was that i was told  no and this is an issue in which i feel very strongly about that we we tourney's do play some role and answer taining if we're going to be called on to exercise challenges we ought to be able do it intelligently and based on some input some colloquy some feedback from these jurors we shouldn't be sitting there trying to guess if someone's no or yes to the judge question is the same or different than the other person's yes it doesn't have to be a lengthy process it doesn't have to be an overarching process the judge can certainly say counsel each a fifteen minutes to question the prospective jurors were ten ts with the whatever the court deems proper in the context of the case but with the court can do respectfully say no sit out i'll do it you know and i think that it's unfair to the attorneys it's unfair to the people who are coming there because how do i know whether i should exercise in a printer a challenge if i don't have some fair brief moment to at least see or judge someone then i can just tell you that is a practitioner if i have to try criminal cases i don't want to just presume that the that the only migrate the information i know is that the man's a police officer for example should i strike up a criminal case i'd better do so i can talk to see if you seems to be a straight shooters as somebody who will call balls and strikes and if so maybe i'll even mud but if you don't give me the opportunity falls i know his background name age and yes yes yes can you be fair yes that tells me this is an important part of our trial process and i think that one deserves consideration and i think that allows the attorneys some fair opportunity can at least allow us to to exercise or preemptory challenges based on something more than just malpractise case maybe that maybe the judge would feel that some you know if it's a high publicity case sure maybe more would be would be warranted in some cases less but i still think it's you know with it's still warranted and required by the rule and i don't think it was factually that if you look at the history of how this got amended but all this work went into a special committee on this then it goes the supreme court rules committee makes sense when you look at the history of the rule the rule was intended to change the way in which juries were selected it's your rule and think suggest that it should be followed as it was written and not ignored rule and say no now i'm sorry just for the record your your your argument is wonderful but if there wasn't i know there was a limitation you may say that limitation was  it says the perspective jurors those knots the rule does not state some perspective jurors who may self report some problem with the propositions of the court and then the court can direct and says you understand that he's presumed innocent and then get someone to agree and this is really follow up it's just i don't think that's the intent of the rule use the language tell me and tell me if this is you are not maintaining that any limitation to the a part of the an r in his is an unacceptable limitation you're not making an argument that you're not saying he didn't permit questions of every member of  and that's a violation i think it's i think it's a perspective juror the jurors if there are a person who has a prospective juror just different from every member of the why i think it's probably i think it's the it's the it's the it's the same thing in that you call panels of four you put them up there out of the back and they sit down and in the judge asks each panel for you know goes through the  questions and instead of saying look counselor do you have any questions you know you have a total fifteen minutes or whatever that is the only time you get it is when you have the people who are you can't be a prospective juror tell that you have a right to ask something and get back to the question as before the judge giving you the opportunity to that question to the judge limit those questions to be self supporting information give me the quote you know what questions you want to ask i provided she said i'll ask them and she has those questions of every single person who was call you aware of the self supporting information option or yes it one of the jurors  that some jurors reported some problem with what the judge sad and then the judge followed up with the perspective jurors about the motion orally as well in and i don't see the reliance on his will know that and that's what the the appellate court relied on houston to say well we're not going to reverse in send this back for a new trial if you look at what they said is that is that was what they relied on and i think that it's the an incorrect analysis because houston was a strickland matter where the defendant bears the burden of you might have indicated there are some distinction between them respect or who are considered prospective jurors those that are called into the jury box and or those who are already in r and r and decide make any difference in your argument i  don't think it makes it least to me it doesn't make any difference because you know the you get a whole room full of people they're called up by the jury commission the judge goes thirty calls randomly for the clerk does it in for you the people in the questioning be done in dallas for no i don't think so but i i maybe somebody else does it different i haven't seen it done different but i'm sure if somebody does don't know that the responses were that it's harmless beyond reasonable doubt in houston even in houston where it was the birdman that a friend of this course still sat back the case to reconstruct the record of what occurred in border and we know that that you know you can have bystanders reports and the judge was there so that was something to recreate in this case there is nothing to recreate it becomes an impossible exercise and i think that that's why the public order if you look at how they struggled with this i think that that once somebody makes an unequivocal request to comply with the supreme court rule on this matter i think it when you send it back and  today when following the conclusion of its direct questioning and allow the parties to pose supplemental questions directly to certain identified perspectives yours second even if this court finds that the trial following following the to certain identified prospective jurors and second even if this court finds that the trial court did not comply with rule four thirty one a any error here was harmless now turning to the first issue although the people do not argue in the  court complied with rule four thirty one a defendant does not argue that the people forfeited this argument in his reply brief or even in his opening argument to the court this morning furthermore this court can affirm the trial court's judgment on any basis it is supported by the record and here is undisputed counsel conceded this this morning that following the conclusion of the trial court's direct questioning he was allowed the opportunity to directly question certain of the prospective jurors and in doing so the trial court complied with rule four thirty one day the record shows this that the funny conceded this in his opening brief in his reply brief it's also in his motion for a new trial which is contained in the record the trial court also confirmed this fact at the defendant's hearing  at the defendants for the defense motion for a new trial saying that she allowed the parties to pose questions to certain members of the jury veneer now with the question becomes and what the defendant is arguing now even though is a little unclear from this morning is that what the trucker did here was insufficient to comply with rule four thirty one a that under the rule the trucker is required to allow the parties to post questions to the entire jury veneer but there's nothing in the language of the rule that requires the trial court to do th rather the rule is open the question to whom and that direct questioning is to be directed and in doing so the trial court has the discretion to decide to whom to direct questioning is to be directed now as runners to this morning rule for of the rule is mandatory directory or mandatory permissive and under the previous version of the rule the language was mandatory permissive in that the rules stated the court may permit the parties to supplement the examination by such direct inquiry as the court deems proper and the current version of the rule states that the court shall permit such direct supplemental inquiry as the court deems proper and also this court added the additional factors that the trial court is to consider in granting or denying request for supplemental questioning now with the question becomes is what does that the change from made to shall mean and this court has generally held in the past that the use of the word shall in a rule indicates a mandatory directory intent this court has also held that the use of the word shall and that rule does not it's not an inflexible rule that the use of the word shall can be interpreted to be permissive depending on the context and intent of the drafters which is this court so certainly when this unlimited discretion in how to conduct why dear it could in its discretion deem it proper to allow direct questioning or to not allow direct question it was completely discretionary now under the rule with the change from me to shall the tr is to consider the parties request is required to consider the party's request and it must weigh its discretion in favor of granting the parties requests but is not required to do so that's the purpose of that court deems proper language when the part when the cour considering that the request the court is required to consider the factors that articulated in the rule if you consider the length of the trial court's inquiry if you consider the nature of the charges and the complexity of the case but if the court then after considering all those factors and in its discretion deems direct questioning proper in the scope of the inquiry the length the manner and to whom the questioning is to be directed those are all questions that are left within the discretion of the trial court judge and deem it proper in some cases to not allowed direct supplemental questioning but it would have to be determined under the facts and circumstances of that particular case it could be a case where it's very simple the nature of the charges is very simple  we have a long trial there are going to be a lot of witnesses that trial court asks the questions as it did here that counsel wanted to ask and counsel not pointed to any question that he wanted to ask that the truck or did not ask and that's have the situation in might be a proper for the court to not deem direct supplemental questioning proper appropriate but it could also be a circumstances in which you have a long murder trial with a lot of complex scientific testimony in there which case it might be an abuse of discretion for the trucker to say i'm not to say i'm not going to allow direct supplemental questioning to the entire jury veneer it would have to depend on the facts and circumstances of each particular case and in this case the defendant has not shown that the trial court abused its discretion in conducting voir dire in the manner that it did and it is an abuse of discretion standard as this court held in people versus loeb here the defendant f a motion prior to trial requesting to participate in the process and at the hearing on the defendant's motion the trial court specifically asked counsel what questions he would like to ask the prospective jurors and the count and counsel gave two questions one whether any of the prospective jurors had a personal or moral belief regarding the consumption of alcohol and to whether the prospective juror would view a police officer's testimony to be more credible than that of an ordinary citizen t confirmed with trial counsel that the the issues in the case were not complex the consider the fact that the nature of the charge was a dui and told the parties that it was going to ask three questions two of the questions that counsel was going to ask in also  additional question whether any of the prospective jurors had ever donated money to our participated in an anti drunk driving organizations such as mothers against drunk driving and after the court told the parties that it was going to ask those question it gave the parties an opportunity to submit written supplemental questions that it would also ass and then it conducted its own direct questioning and then following the conclusion of that direct questioning the trial court allowed the parties to select which identified which juries they wanted to question further and the defendant identified seven jurors these jurors were taken to the back hallway of the courtroom where the trial court conducted followup questioning with these jurors and they gave the parties an opportunity to directly question these perspective jurors so there is nothing in the process that the trial court conducted here that was an abuse of discretion now the defendant here argues and he relies upon this idea that jurors are likely to be more candid in response to questioning by attorneys and are intimidated by trial judges because being in a courtroom is an intimidating experience but to the extent that that social science research is part of his argument the important thing to remember is that the purpose of this is peel is to determine the language of rule for thirty one a day and there's nothing in the language of the rule that talks about the reason for allowing direct supplemental questioning there's nothing in that committee comments that talks about the that the reason that this court changed the language from maine to shall permit is attributable to this social science literature and finally the rule does allow for direct questioning it simply allows the questioning in situations where the court deem  appropriate so in a situation where the trial court receives a request from counsel it's required to consider the request is even to weigh its discretion in favor of granting the request but it's not required to do that and in doing so the rule is written recognizes that there may be benefits to direct attorney questioning but that it's not appropriate and every single case and here the defendant has not shown that the trial court in limiting the questioning to only certain members of the new questions were in the interpretation of rule i would just move on to the second issue about whether or not harmless error applies assuming that this court finds that the trial court did not comply with rule four thirty one a defendant appears to argue that harmless error is inappropriate and that per se reversal of his conviction is required for two reasons first he argues that there is a federal constitutional right to be able to ask questions to the jury veneer and that where there has been a violation of this alleged constitutional right that constitutes structural error which requires automatic reversal and remain for a new trial and second he also appears to argue that this court rules are mandatory and because this court rules are mandatory and have the force of state law then a harmless error review is inappropriate and per se reversal is required now turning to the first issue at most what the defendant has alleged here is a violation of one of th court's rules it's a violation of state law and the offending here is not cited any case which has held that there is a federal constitutional right to be able to pose questions to the entire jury veneer the claim that the defendant is raising here is essentially the same claim that was raising rejected by the supreme court recently in rivera versus illinois in that case the supreme court examined the erroneous denial of a peremptory challenge which is a state law right that's given to criminal defendants and the court held that and examining that denial there was that violation state law determines the remedy for that violation not federal law here defendant is that alleging a violation of one of this court's rules and in doing so he appears to argue that this rule which was created to assure ensure that he receives an impartial jury trial that results and structural air but the supreme court recently held the also in georgia vs mccollum that even where state law creates a right that is used as a means to achieving an impartial jury trial the violation of that right does not result in the violation of his right to an impartial jury trial so here to defend is not identified any situation in which federal law would be implicated in this issue but the question does become then what is the result of a violation of one of this court's rules and independent appears argue that wherever a rule one of this court rules has been explicitly in vote and has been denied per se reversal is required and that can't simply be the case this court's precedent in people versus houston and also in people versus rivera demonstrates that even where there is a violation of one of this court's rules per se reversal is not always required and the fed has not cited the case which is held that per se reversal is required every single time one of this court rules has been violated now certainly this court's rules are mandatory however constitutional rules are mandatory rules that were articulated by the supreme court in a pretty versus new jersey and doyle versus ohio the confrontation clause those are all mandatory rules but those violations of those rules are still subject to harmless error analysis they're not subject to per se reversal per se reversal is limited to those situations in where there has been structural air so the defendant is arguing here is that whatever there's been a violation of one of this court's rules the remedy is automatic reversal in every case which is the remedy for structural air and as the supreme  structural errors are limited to very rare search very rare situations situations where you have a bias trial judge where you have a denial of the right to counsel of choice really have the denounce the right to self or self representation at trial and this is not the type of situation that we have here so even if this court finds that there is an error harmless error review applied and applying harmless error review this court should find that the error here was indeed harmless now the people do bear the burden of persuasion with respect to showing that the error was harmless that the people can show that that error was harmless for two reasons first the trial court's questioning was sufficient to ensure that the defendant received an impartial jury trial defend court or in this court has not identified any question or area of questioning that he was not able to pursue in front of the trial court or a question that the trial court did not ask that he wanted to ask and the record shows that the trial court's questioning was thorough and was sufficient to ensure that anyone who would have been removable for cause or should not have sat on that jury for cause did not sit on that jury and second there was overwhelming evidence showing that the defendant was driving under the influence of alcohol the officer at trial testify at the defendant was swerving back and forth between lanes he had the odor of alcohol on his breath he also had glassy bloodshot eyes the defendant failed three sobriety tests after he was taken to the police station  the defendant refused to take a breathalyzer test which this court has held to be circumstantial evidence of the defendant's guilt so the evidence here at trial shows that there was overwhelming evidence establishing that defendant was driving under the influence of alcohol so even if this court does correctly pointed out as the court deems proper for a reasonable time period to direct inquiry but i submit to the court as the court deems proper would go to scope would go to time would go to what questions would be asked based upon the court's initial inquiry of the board here to the entire panel so when it says to as the court deems proper yes there is a court deems proper you can't attorney run off on a tangent on different issues and have no basis before the court on the border process again the constraint is the time and complexity but not as as constrained as to actually ask the questions because as some of the court is a world of difference between a judge which is obviously a higher authority and an attorney asking questions you get different body language you get into mannerisms you get different speech inflection do you get and different way of asking which would be helpful to the attorney in assessing whether or not i'm going to use my preempt atory challenge on this particular jury or there are not i'm not on this particular jury but i don't have that same i don't have that same information when the court asked one  routine question would you have the forwarding questions for thirty one b but any other questions if there are standard yes yes yes yes no no no no it's a little different even if it's the same question he turney asked the question to the to the border panel the third district court said it was a right to do it obviously this court can change that and unhappy with their d'souza is right and limited the scope individuals again it's not the not the issue of the question that i want to make the question the issue is not whether the stranger out at the trial court gave two questions or inquire but it was one of the initial questions plus any follow up questions within the school again as a it's who asked the questions and the response to make in this this isn't the attorney is not an authoritative figure the attorney is is the attorney in th case the judge is the authoritative figure and the judge makes how the rules in the court the state is arguing that this change in the statute went from permissive eternities ask the questions but you're not going off on a tangent you're not going off on three days of questioning you're not going off in areas that are just not the subject of this case or the complexity of this case but you are allowed to ask kind of inflection in voice kind of yes rolling eyes from an attorney asking questions rather than from the court because you use it proper you stand proper and you address the court proper people address the little bit different than the way they do the court so if you have a right to a fair impartial jury the rule the way it stands should allow it in like the third court destroyed you have that right you should be allowed to ask it just giving the court question because i see it as a two way approach you give some of the court questions to supplement in the beginning and the direct exams for any follow up within the scope of the answers originally the hallway questions are you need i call in the hallway questions because the court does not want to shame or embarrass a prospective juror and the connotation of the answer that they may be giving it for the entire pair and i agree with that and back hallway and ask additional question but something may be raised in that question not dobbin in this particular case issue in this case that counsel should have been allowed to question each each each member there yet either in the entirety or in the fifth or in the the set group but within the whole count strange because nobody leaves the room judge they they are just as they call up who are individuals who put him in what they call the jury box and they ask them questions button the question or people we were talking about yesterday was it for people that we were talking about if we question the whole it i would say the entire right near but the courts usually lao any questions to go towards indifferent or houses to the floor they were selected first or of the two from the answers that they gave but i don't i don't have a transcript of that today to give the exact limitation in the hallway course of the  were taken in the back hall yes if they have an issue arose or they didn't feel comfortable asking answering the question in the initial may arise where they don't feel comfortable answering the question in the entire public of the forty people i didn't hear it any portion of his argument he can even answer as to justice kilbride's question was there any cut off with respect to the questions that were in the hall which are the jurors that were a submitted right or that the judge or that someone soft reported a problem with either alcohol in the family or a problem with the consumption of alcohol or some other issue the judge then conducted further inquiry of that you're in  this self reported issue after the judge completed her questioning of the juror then would say if the guess or not you don't have to the juror said yes or no is or any follow up to what i  s and you were able to ask every question with respect to that inquiry in the hallway every question that the juror self reported if the well that's the issue i don't i mean well yeah you don't want to know if you went skydiving i mean great so that the issue be you gave questions to the judge there right that's correct all right the judge asked those questions that is correct some gave the answers that he allowed you to follow up on in the hallway with those jurors true or not i don't believe that because the the judge followed up the judge is the questions and then after she asked the questions she did say is or anything else on this issue is so in this is why if you look at the record i used then when she said are there any follow up questions is she impose any additional restrictions on the questions you would ask the only myself reporting the only thing i could ask is what specifically the the person self reported have that they'd carry out in the hall in the end make an issue of this the microphone for whatever reason don't work the electronic recording it's one of those technical glitches that thank you