Illinois Court Finds Trial Judge Erred by Asking Jurors Whether Defendant's Invocation of His Right to Counsel Influenced Their Decision to Find Him Guilty

Post-verdict jury polling is a fairly common practice, ensuring that each individual juror did actually vote in the way reflected in the verdict form (e.g., asking each individual juror whether they voted to find the defendant guilty if the jury returned a "guilty" verdict). But what about polling the jury about whether a specific piece of evidence influenced how they voted? That was the question addressed by the Appellate Court of Illinois, Fourth District, in its recent opinion in People v. Boose, 2025 WL 798799 (Ill. App. 4th 2025).

In Boose, the defendant was charged with first-degree murder. 

By agreement of the parties, the State was allowed to play portions of defendant's videotaped police interview for the jury. Throughout the recordings, defendant denied striking Regina. In one portion of the interview, defendant requested counsel, and Sergeant Gulley asked defendant, “Why should you get an attorney when you didn't do anything?” Trial counsel did not object to this evidence. Later, during a recess, the trial court expressed concern about the video and asked defense counsel whether “the decision to not oppose the playing of the video other than the portions redacted” was part of his trial strategy. Defense counsel responded it was. 

After the jury returned a "guilty" verdict, the judge was still clearly concerned about the admission of this evidence, prompting the following post-verdict question(s) to the jurors:

THE COURT: Now I have to ask you something else. I'm going to read this question and I'm going to ask you each to answer either yes or no. Did the fact that the detectives’ interview of defendant ended when [defendant] asked to speak with an attorney in any manner affect your verdict in this case? We'll go down the list. Mr. Khalid, Juror No. 1?

JUROR KHALID: Yes. I'm sorry. I didn't fully understand.

THE COURT: Did the fact that the detectives’ interview of this defendant ended when [defendant] asked to speak with an attorney in any manner affect your verdict in this case? You still don't fully understand?

JUROR KHALID: I'm not understanding.

THE COURT: The video that we watched yesterday for about three hours, it ended—when it ended, it ended because of the fact that [defendant] asked to speak to an attorney.

JUROR KHALID: Yes.

THE COURT: All right. So my question is, did the fact that the detectives’ interview of the defendant ended when [defendant] asked to speak with an attorney, did that in any manner affect your verdict in this case?

JUROR KHALID: Yes.

THE COURT: It did. So because he asked for an attorney, that helped convince you to find him guilty?

 

JUROR KHALID: No.

 

THE COURT: Well, did it affect your verdict or not?

 

JUROR KHALID: No.

 

The other jurors were polled in a similar manner and responded, “No.”

In denying the defendant's subsequent claim of ineffective assistance of counsel, the appellate court also admonished the trial judge for this post-verdict polling, stating the following:

Upon review of Illinois caselaw involving polling practices, this court has found no instance where a trial court, sua sponte, polled jury members as to whether they considered any particular piece of evidence that was admitted at trial in reaching their verdict. Although the trial court is allowed discretion in its manner of polling, we cannot endorse a polling practice, such as the one employed in this case, that resulted in jurors “testifying” regarding what evidence they considered and whether it influenced their decision “to assent to or to dissent from the verdict” in contravention of Rule 606(b). To avoid invading the province of the jury, it appears to this court that polling issues should likely be limited to those factors enumerated in Rule 606(b) and “whether the verdict has in fact been freely reached and remains unanimous.”...

Putting aside the arguable impropriety of the trial court's poll—an issue that has not been raised by the parties on appeal—we nonetheless conclude the court's reliance on the poll in considering the issue of prejudice was misplaced here. To begin, the form of the court's poll did not actually address the heart of the issue, which was the potentially prejudicial effect of allowing the jury to hear defendant's invocation of counsel and the officers’ comments regarding the necessity of an attorney if he were innocent. The prejudicial effects associated with the jury hearing this are that it may (1) incorrectly impute a consciousness of guilt associated with invoking the constitutional right to counsel and (2) contradict the presumption of innocence—a principle in our criminal justice system considered so fundamental that trial courts are required to ask jurors whether they both understand and accept it during voir dire...Here, during its poll, the court asked jurors whether the fact “the video ended” when defendant asked for an attorney affected their verdict. The form of this question was not sufficient to gauge whether defendant's invocation of counsel or the officers’ comments thereafter impacted any individual juror's decision because the emphasis was on the video ending and not the events that precipitated it. Accordingly, we decline to consider the results of the court's poll in determining whether its ultimate decision on the issue of prejudice was manifestly erroneous.

-CM