ATTORNEY PARTICIPATION IN VOIR DIRE EXAMINATION IN ILLINOIS

• NCJ Number: 53676
• Journal: UNIVERSITY OF ILLINOIS LAW FORUM Volume: 1977 Issue: 4 Dated: (1977) Pages: 1145-1166
• Author(s): B J SPRINGER
• Date Published: 1977
• Length: 22 pages
• Corporate Author: University of Illinois
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE QUESTION OF WHETHER DEFENSE ATTORNEYS IN ILLINOIS MUST BE PERMITTED TO PARTICIPATE IN VOIR DIRE EXAMINATION OF POTENTIAL JURORS IS EXAMINED.

Abstract

IN 1891, THE ILLINOIS SUPREME COURT HELD THAT A CRIMINAL DEFENDANT'S ATTORNEY HAD THE RIGHT TO EXAMINE PROSPECTIVE JURORS DIRECTLY AND THAT A TRIAL COURT HAD COMMITTED REVERSIBLE ERROR BY CONDUCTING THE ENTIRE VOIR DIRE EXAMINATION ITSELF. SUBSEQUENTLY ILLINOIS APPELLATE COURTS BEGAN TO LIMIT APPLICATION OF THAT HOLDING, FINDING THAT PROHIBITION OF DIRECT ATTORNEY QUESTIONING WAS NOT REVERSIBLE ERROR IF THE TRIAL JUDGE'S VOIR DIRE EXAMINATION PROVIDED THE DEFENDANT WITH ENOUGH INFORMATION TO EXERCISE INTELLIGENTLY THE RIGHT TO CHALLENGE PROSPECTIVE JURORS. IN 1975, THE ILLINOIS SUPREME COURT AMENDED ITS RULES TO VEST IN THE TRIAL JUDGE DISCRETION TO CONDUCT VOIR DIRE EXAMINATIONS WITHOUT PARTICIPATION BY COUNSEL. IN RESPONSE TO THIS NEW RULE, THE STATE GENERAL ASSEMBLY AMENDED THE ILLINOIS CRIMINAL CODE TO GUARANTEE OPPOSING COUNSEL THE RIGHT TO CONDUCT VOIR DIRE EXAMINATIONS. THE CONSTITUTIONAL RIGHT OF CRIMINAL DEFENDANTS TO CHALLENGE PROSPECTIVE JURORS IS DISCUSSED, AND THE ROLE OF VOIR DIRE EXAMINATION IN PROVIDING THE INFORMATION NEEDED TO EXERCISE THAT RIGHT IS CONSIDERED. REASONS FOR THE STATE SUPREME COURT'S 1975 LIMITATION OF THE ATTORNEY'S RIGHT TO PARTICIPATE IN VOIR DIRE EXAMINATION ARE EXPLORED, AS ARE REASONS FOR THE GENERAL ASSEMBLY'S EFFORT TO OVERTURN THE COURT'S RULE. THE RULEMAKING POWERS OF BOTH THE COURT AND LEGISLATURE ARE EXAMINED TO DETERMINE WHICH BRANCH HAS THE ULTIMATE AUTHORITY TO DEFINE VOIR DIRE PROCEDURE FOR THE ILLINOIS COURTS. IT APPEARS THAT THE ULTIMATE AUTHORITY RESTS WITH THE LEGISLATURE. (AFTER THIS NOTE WENT TO PRESS, THE ILLINOIS SUPREME COURT HELD THE GENERAL ASSEMBLY'S VOIR DIRE AMENDMENT UNCONSTITUTIONAL, CITING THE ILLINOIS CONSTITUTION'S SEPARATION OF POWERS CLAUSE. THE COURT'S ARGUMENT IN THAT RULING IS SUMMARIZED, AND POSSIBLE IMPLICATIONS FOR THE STATUS OF THE MANY STATUTES REGULATING TRIAL PROCEDURES IN ILLINOIS ARE NOTED). (LKM)