maybe safe thank you and good morning honors my name is peter fischer i'm an assistant state's attorney from cook county on behalf of the people you want to issue in this case is whether the holding in rational people versus glasper that the failure to strictly comply with the mandates of this court's rule for thirty one b is not per se reversible or whether that ruling and holding in rationale should apply to the amended version of the rule and there's no real logical reason why it should not and your honour's are fully aware this court changed rule four thirty one b from the state that it existed in last for where it was incumbent upon the defense to raise a request to have the what we've called for years these are questions asked of juries and now that that is required in all cases whether or not the defense asked for it there is no reason in logic or rationale why the glasper opinion that that is not per se error should not apply and in fact if you look at blaster the vast bulk of this court's reasoning in that decision still applies with equal validity to the case of bar in glasgow or this court held in no uncertain terms that defendants do not have a right to four thirty one before questioning under either the united states or illinois constitution and the defendant's right to such questioning is the product of this court's inherent power to make rules regulating the conduct of circuit courts that determination is completely unaffected by the amendment to the rule in this case the mere fact that the rules been made does not transmute this somehow into a constitutional issue and it can't and in fact had that been the case then glasper would have had to been decided differently because the constitutional requirement would have existed whether or not the law whether or not this rule ever existed or not in class where this court also recognized the type of error here does not fit into any of the united states supreme court's list structural errors and that are subject to automatic reversal of course the change in the rule does not change that one bit the the court in glasper stated that the wool is designed to help ensure defendants are tried before a fair jury we cannot say that the question is indispensable to a fair trial and that is again true when you look at this case from the perspective of the defendant it matters not one whit whether the rule is changed for those defendants who asked for these questions to be asked as in last for and were denied that opportunity those defendants are in exactly the same position as defendants who don't get the question is asked now from their perspective it's the same trial it's exactly the same five from the perspective of the judge of the defense of the prosecutor's whether or not there's a fair trial the question is answered the same either case  so necessarily when the glasper court that found to be found that situation be a fair and impartial trial that has to obtain here as well  the as we argued in class for a finding that the violation of rule four thirty one b is per se reversible error would have the perverse effect that a violation of the rule would become more serious or worse in violations of the constitution is that we stated this rule is not constitutionally mandated and yet we know from l arizona versus fulminant in many of us supreme court cases that there are many many instances of constitutional violations where that violation can be harmless and for this court to say that the violation of the rule in this case can't be held harmless is in a sense of elevating the status of the rule above that of the constitutional requirements which would be interesting at best the per se application of this where the jurors not the jury is not asked the question about would you hold it against the defendant if he didn't testify or the question about would you hold it against the defendant if he doesn't present any evidence because he's not required to do so let's assume the defendant testifies and present evidence under the person they were versal you would have to reverse that case i assert that that would be an absurd and meaningless exercise of of authority because so yes you believe this court has the authority of pass a rule that they protect with a promise of reversal of violations absolutely you can you and as i've argued before you should not because the the cost of doing so outweighs the benefits of doing so if this rule is not constitutionally necessary which it is not  and it is not indispensable to a true of almost all of our that that is true that is true but if it's not indispensable to a fair trial which it is not then the cost of per se reversal outweighs the benefits we're getting at here it's clearly these jurors were properly instructed at the end of trial there is no concepts as in harder violations versus kentucky and yet we know that those are constitutional issues and this is not the council how does a trial court able to determine whether a chair harbors any kind of with that in class first we would argue that starry decisis should apply that that it did not concern or it well at least in the opinion it does not reflect that that is an overriding concern the fact of the matter practically speaking majority of the cases that that come to you if you actually look at the the board deer and whether it's a very quick case or not the number of times the jurors ever say i've got a problem with the presumption questions and i'm trying to answer a question about how we would determine and and my responses relating to i don't it's not it's not the same type of a problem as is in the past  and i think you can take judicial notice of the numerous records in front of you in which their questions are asked and nobody says anything we also know that in zero or one of the arguments that we made in this court excepted was the fact that jurors are presumed to follow their instructions they were properly instructed in this case at the end of trial and no one is contesting that in and that statement the jurors are presumed to follow their instructions was made by this court in glasper after this court had already changed the rule for thirty one day rule so we'd argue that that presumption is still valid in  fact as as a working presumption for the criminal justice system go forward i would argue that that is a to extremely important and necessary presumption for the criminal justice system to operate because if we if we're going to go to the extent of not accepting the jurors accept their instructions then then then we've got much bigger problems so i think this court has to hold on to the presumption that jurors are going to follow their instructions if you mention cost of a moment ago you  will cause not just that your honor i think i think the justice system suffers whenever you've got individuals for whom the evidence is overwhelming who got a fair trial constitutionally and there are no constitutional violations that calls into disrepute the justice system when we have to try that case for what would be considered possibly by many in the public to be a technicality and a technicality that doesn't relate to a fair trial that doesn't relate to a view about cases with a view to public opinion i think in instances in which  there is a cost benefit yes i think when we take an extreme view which i think this would be of per se reversal i think that the justice system takes a hit and i think that's important for people to have confidence in the system and ask counsel yes before a glass yes i'm ready which i'm familiar with yes there are rules from the prosecutor's point of view obviously any real trial is is is difficult there is a there's a monetary cost there's a cost to the victims and the witnesses in the case to have to relive the incidents there is the question i'm sure you can point out more but is that cost greater than the cost of the potential damage to justice these admonished was not made during before the trial began well i think it is and i think recognize the change of the rule and we we believe judges should ask these questions we have no problem with them asking the questions but are they constitutionally necessary no can how can we guarantee the last question you can or you decided that it's very important to do  k we you know he's the law you can't carry a guarantee anything and i and i can see that these questions should be asked and i am as perplexed as you are as to why they're not being asked we have seminars instructi that one small change is enough to convert this into per se reversible or mr fisher i guess i want to follow up and justice freeman's question i think in response to that you mentioned something this regard to that in that retrials are a costly especially when the evidence is overwhelming i want to know why is the way the evidence against defendant relevant to the possible existence to cure a bias and why is that relevant  doesn't object is this defendant didn't object this defendant didn't say anything when the judge didn't ask the questions and it didn't come up in the post trial motions glasper was a harmless error case the defendant glasper said i'd like these questions asked and the judge in that case said no i'm not going to ask the questions in this case the defendant didn't request that now granted he didn't have to request that but he could have brought it to the judge's attention and said judge but you know you forgot to questions you forgot to ask before thirty one thirty one b questions and we wouldn't be here today presumably the presumably the judge would have done the right thing and we would it would have all been handled but in order to to to get there you have to hold this defendant in a better position than the defendant in glasgow and i was certain that perverts the incentives in this case you want everyone to object i agree the prosecutor should have said something the defense attorney should sense the judge should have done it but those didn't happen but you don't want to create a system where the defendant wins by not objecting because there's a and we call it the get out of jail free card i mean basically if the defense is sitting there and who knows the judge isn't asking those questions they know they've got an automatic reversal in their pocket no matter what happens during the trial and i would say that would pervert the normal forfeiture rules in this case and ultimately as i said when we've already said that  violation can be harmless and a card a violation can be harmless it's rather disingenuous to say that that this rule violation can't be harmless because it does in a sense elevate a violation of the rules as to being more egregious or worse then a violation of the constitution itself short you're honest we'd ask that that you hold that the per se reversal rule not be adopted that the rationale and holding of glasper be extended to angelo thompson this court amended rule for thirty one b so that judges in every case must ask whether prospective jurors understand and accept the four fair trial principles this court can foster future compliance by responding to violations with a bright line rule of reversal the state argues that remanding for this case for a new trial conflicts with this court's holding in people vs glass or however both the reasoning and the holding in glasberg were limited to the old rule which only required questioning about the fair trial principles when the defendant requested them is a cardinal rule of statutory construction that a material change in an unambiguous law is intended to effect a change in the law as it formerly existed when this court amended the rule to require four thirty one b questioning in every case it signaled that skipping those questions was riskier than it first at first believed and that the integrity of the proceedings was at stake given the importance of rule fo thirty one b questioning and the many functions it serves this court has every reason to stand by his decision to make it an essential part of your dear as this court recognized in people versus their individuals who do not know and embrace the four principles upon which our country's notion of a fair trial is built are not qualified for jury service the most efficient way to find out whether an individual possesses the requisite qualifications is to ask him or her during  since jury deliberations remain secret board here is the last chance a judge will have to probe for prejudice and confusion amongst the individuals who will be responsible for deciding the defendant's fate and also how how do you address that in people versus  decision to this court and maybe many men and they believe we held that per se reversals required only with respect to constitutional violations that rise to the level of structural error and although the rule changed after glass for we say definitively of page one ninety six of glass that this quarter see question is not a constitutional right defendants do not have a right to rule for thirty one be questioned under either the united states we're the only constitution doesn't that make the state's argument that the failure to comply with four thirty one piece simply cannot be reversible should choose three first under these circumstances it's not that the court's hands are tied but when you have a situation where the court has written a rule which is extremely clear and so easy to follow you could read right from it and yet rather than the strength of the evidence at trial i think in class for even this court acknowledged that if we knew that the defendant was tried by a jury that was biased in some fashion that the court would have no problem reversing and well again prejudice in terms of whether the rule was complied with i mean the rule serves a prophylactic purpose so if we really can't tell just by looking at the strength of the evidence how the rules compliance or non compliance affected the outcome of the trial you don't think there would be no i think it's really speaks more to this court's need to enforce a rule that it wrote for a reason and just to send a message that you know we mean business and that this is really not a difficult thing to do it serves an important purpose we can't say you know how great the harm is when there is noncompliance so if we just get with the program then we won't have to really deal with this issue much longer you know it's really a temporary where one of the principles wasn't covered at all i mean the the third and fourth principle were were short changed especially counsel explained to me was the difference between you're not advocating for percy rule which are  for a bright line and you've just told justice thomas that you know really have any problem with a harmless error analysis because i'm really confused well by it one rule is it is an attempt to convey the practical concerns of the court with this rule per se suggest that your honour's don't have a choice about what to do like if there's a serious constitutional violation your hands are tied we recognize that's not the case but and right on well it's i guess it's a subtle point but per se meaning that your honour's don't have a choice about whether to reverse as opposed to bright line rule meaning you choose to reverse in this instance to prevent the problem from recurring and to ensure enforcement with your rules  violations that's a situation where you know the right to an adverse in inference instruction is contingent upon a defendant's request so in that situation like glasper we can't say that that right is so important that it has to be reversible error in every case but when we decide that that this kind of question has to occur all the time then it does make sense to elevate this error above other types of errors that might be subject to harmless error analysis well i don't think you should take reversibility off the table i mean maybe we're quibbling over the term per se but i think establishing a bright line rule that says you have to follow this exactly as it stated or else we're not going to affirm i think that's how you get compliance as i was saying since jury deliberations remain secret board here is the last chance a judge will have to probe for prejudice or confusion and the rule for thirty one b question also has a significant impact on which jurors will be selected f service since trial attorneys can use the jurors responses to guide their primary challenges and they're perfect challenges for cause also the questioning serves an educational purpose since it allows prospective jurors to become acquainted with the princip before they begin digesting the trial evidence in class for this court rejected the idea that the absence of rule four thirty on the questioning makes it inevitable that the jury was biased since jurors are presumed to follow their instructions but this observation sort of misses the mark since prophylactic procedures like rule for thirty one b are about avoiding risk in this case the risk the possibility or even the probability that the jurors who decided the case testifies it's important for the jury to understand and accept that the defendant didn't have to testify you know that they if he hadn't testified they could not hold that against him i think that knowing that could very well fact the sort of credibility determinations that go into judging that testimony so that there's really no situation where where it's a good idea to just skip any one of the principals under the facts of that case contrary to my opposing counsel argument empirical evidence does suggest that these principles are not safe in the hands of real jurors who often think that a man who is on trial is probably guilty especially if you doesn't take the stand himself to say otherwise by implementing a simple procedure that increases the likelihood of jurors actually following through on their sworn duty to follow the law this court placed the defendant's right to a fair trial and head of the presumption that jurors are presumed to follow their instructions but still hold true to the pragmatic purpose of that rule it is often stated that this court's rules are not mere suggestions that they have the force of law and they should be followed but the reality is even if you say this in bold face type there is no compliance without enforcement and this is this is evidenced by the numerous decisions coming out of the appellate court and which you know regardless of whether it's been found reversible error they have judges have acknowledged that there was not compliance with the rule and in this case mr thompson's trial began after the rule took effect but the judge didn't even substantially comply the jurors were never asked whether they accepted that mr thompson was presumed innocent they never asked whether they accepted that the state or the burden of proof beyond a doubt beyond a reasonable doubt the judge didn't conduct any questioning about the third principle that the defendant doesn't have to present any evidence and the judge neither admonished the prospective jurors about the fourth principle nor ask them whether they understood or accepted that they were prohibited from holding mr thompson's failure to testify against him  consistent application of amended rule for a thirty one b below the alternatives saving reversal for only the most closely balanced trials or only the most egregious rule violations will send a message to trial judges that compliance with this court's amended rule is in fact just a suggestion it will leave the door wide open for appellate courts and litigants to quibble over whether a judge's compliance with the rule can be considered substantial or strict or whether the has to consider whether it's more important to prevent you know an inadvertent winfall in certain circumstances or to enforce the rule that it decided was worth imposing in every single criminal trial so i don't think that any any accidental it vantages the defendants are are persuasive in to this court's decision about what to do when there are violations also the prosecutor even acknowledges that they want to take that route i don't think it will be long before prosecutors get hip to that scenario and step in and that no one would ever let that occur you know that that's just something that in no one's interest the judge wouldn't want to the prosecutor wouldn't want it so it's unlikely that they could get away with that scenario nor should they try so the surest way to secure a future compliance with amended rule four thirty one b just a couple points your honour's along the lines of the bright line reversal argument in addition to the the scenario that i gave about the defendant testifying anyway even though the instruction was him that that is not just a hypothetical situation that is actually happening in the appellate court and in fact as your owners are aware not only are there are dozens of these cases which have been decided in the appellate court there are dozens and dozens still that have not yet been decided but there's an additional  example of an absurdity let's assume that the judge doesn't ask any of the questions clearly violates the rule but let's assume that the defense attorney does asks all the questions the under the bright line rule that's a violation that's per se reversible the purpose of the rule is to ferret out whether or not any of these potential jurors have a bias against these rules that purpose is effect under the rule is required to yes it's the court yes that's what i'm saying the court is required to ask them but let's say they don't and the defense attorney does anyway the world and say the defense attorney can't ask the question it just said that in fact in many courtrooms the defense attorneys ask all the questions and then the prosecutors i mean judges ask couple preliminary things and then everything's thrown out to the to the attorneys themsel i'm positing a situation where the court does not ask those questions even though i agree the court has to but the defense attorney does in the same information's out the same cause head and we find out whether those jurors have a bias against their principles well the rule changed to say the court must ask questions and that's very clear in the court doesn't have to ask questions and we agree with that the corollary that there's something behind the rule that we have to get into when the rules clear on its face i think is a logical leap not provided for in statutory construction analysis the other thing to remember is that the judges as they sit there before trauma judges don't like to try cases again i mean nobody likes to retry the same case there's no point to it nobody nobody benefits from this in a case in which the evidence is overwhelming but the judges don't know that before trial so the notion that they're just going to blow off zero responsibilities and therefore thirty one b responsibilities just because they can i think that's unrealistic they still they don't since they don't know the evidence is going to be overwhelming they they take a very big risk in not asking those questions a risk that they may have to try that case again in the next year or two and i think that is enough of an incentive aside from the fact that they're being called out and said you didn't you didn't follow this rule the mere fact that the case isn't reversed or not doesn't necessarily mean that the judge doesn't take heat for not following the rules and i think i would say that there is some level of professional embarrassment for being called out by the  the supreme court for not following the rules and that in itself is it is important to remember really the you know the from the viewpoint of who is most harmed in these cases it would be you know the prosecution  n the victims in the cases rather than the judge so reversal in and of itself is not the be all and end all sending the signal or if this if this if this whole case is about sending signals the signal can still be sent  or by your honour's by saying judge you should have done this wake up do it and i think that carries a level of professional embarrassment that most judges would like to avoid in any event your honors we would ask that you