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JUROR: Beyond a reasonable doubt?"

After this exchange took place defense counsel requested a side bar and asked the trial court to inform the jurors that thelaw imposed a burden of proof on defendant and that this burden was "proof by a preponderance of the evidence thatdefendant is not guilty by reason of insanity." The State objected on the basis that the jury did not need to be instructed onthe defendant's burden of proof during voir dire. The trial court agreed with the State, indicating that the burden of proofwould be discussed at the end of the trial. However, the trial court during voir dire did inform the jurors of the State'sburden of proof. The trial court also asked each juror whether he or she understood the burden of proof in criminal casesand whether he or she could return a verdict of not guilty if the State did not prove defendant's guilt beyond a reasonabledoubt. Contrary to defense counsel's request during voir dire, the jury was not told that the defendant had a burden of proofand the jury was not told that the law imposed a burden of proof by a preponderance of the evidence on defendant. Duringvoir dire the potential jurors were not asked whether they could follow the law which imposed a burden of proof by apreponderance of the evidence on the defendant.

Both the State and defense rely on Zehr. In Zehr our supreme court defined the basic guarantees of which jurors in criminalcases must be informed during voir dire. Zehr, 103 Ill. 2d at 477. The supreme court held that jurors during voir dire mustbe informed that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that hemust be proven guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held againsthim. Zehr, 103 Ill. 2d at 477. The supreme court concluded that the trial court erred when it refused the defendant's requestto ask prospective jurors whether they understood that a defendant was presumed innocent. The supreme court rejected theState's argument that the jury instructions adequately advised the jury concerning these basic guarantees, agreeing with thedefendant that the questions were essential to the qualifications of a juror and that instructions at the end of a trial wouldhave little curative effect on a juror who held a prejudice against those basic rights of the defendant. Zehr, 103 Ill. 2d at466- 477.

Defendant contends that under the reasoning set forth in Zehr, where the defendant has a burden of proof, it is essential thatpotential jurors be informed as to that burden and questioned as to any prejudices or biases they might have as to thatburden. Defendant further argues that the trial court's instructions about defendant's burden of proof at the close of the casedid not cure any prejudice a juror may have had from the outset of the trial. The State relies on Zehr to support its positionthat the basic guarantees enumerated in Zehr do not include a requirement that the trial court during voir dire informpotential jurors that defendant has a burden of proof in an insanity case.

By including the burden of proof as a basic guarantee which should be discussed with potential jurors on voir dire, webelieve the court in Zehr recognized that questions regarding the burden of proof should be answered in the course ofinterrogation on voir dire. Zehr, 103 Ill. 2d at 476. The burden of proof on the defendant in an insanity case falls within thescope of the subject matter enumerated by the basic guarantees recognized in Zehr. Moreover, in this case the burden ofproof was the subject of direct inquiry by a prospective juror during voir dire. In an insanity case the law imposes a burdenof proof on the defendant and to limit questioning of potential jurors as to the burden as it applies only to the Stateincompletely explores the subject matter of the burden of proof which Zehr recognizes as one of the basic guarantees thatshould be discussed with potential jurors.

The reason the court in Zehr identified specific guarantees which should be the subject of questioning on voir dire wasbecause the court recognized that the defendant has the right to discover prejudice or bias in areas which are basic toaffording the defendant a fair trial process. Zehr, 103 Ill. 2d at 477. Without discussion of the basic guarantees during voirdire, if a juror has a prejudice against any of the guarantees, an instruction at the end of the trial will have little curativeeffect. Zehr, 103 Ill. 2d at 477. Two recent supreme court cases apply the Zehr analysis in addressing what basic guaranteesshould be discussed during voir dire in the context of the defendant's right to discover bias or prejudice. We find these casesinstructive.

In People v. Buss, 187 Ill. 2d 144 (1999), the defendant argued he should have been allowed to ask prospective jurors, "Ifany one of you were against death, could you so vote alone and stop the entire proceeding. Would you be able to standalone in this way?" And, similarly, in People v. Macri, 185 Ill. 2d 1 (1998), the defendant wanted to ask potential jurorsabout their ability to vote against the death penalty in the event all the remaining jurors voted otherwise. The supreme courtrejected these arguments and held that such questions concerning a juror's ability to vote alone against the death penaltywere more appropriately covered by jury instructions and did not involve the basic guarantees of which jurors must beinformed during voir dire as required by Zehr. Buss, 187 Ill. 2d at 183.

In both Buss and Macri our supreme court concluded that jurors were given clear instructions concerning the unanimityrequirement for the death penalty and therefore "stand alone" questions on voir dire were not required as they did not fallwithin the basic guarantees enumerated in Zehr. However, in Macri, the supreme court, citing Zehr, indicated thatprospective jurors should be examined on voir dire to determine the existence of prejudice against the presumption ofinnocence, the standard of proof and the right of a defendant not to testify. In Macri, the supreme court stated that nocorrelation existed between the proposed questions and the defendant's asserted goal of detecting bias or prejudice wherethe defendant sought to ask potential jurors questions concerning their ability to vote against the death penalty. Macri, 185Ill. 2d at 36.

Unlike Buss or Macri, here, a direct correlation exists between the question proposed by defense counsel, regardingdefendant's burden of proof and the defendant's goal of detecting bias or prejudice. If, for example, a juror has a prejudiceagainst the basic proposition that the defendant bears the burden of proof of insanity by only a preponderance of theevidence in an insanity case, while the State has the greater burden of proving defendant's guilt beyond a reasonable doubt,then the defendant is denied his right to a fair and impartial jury from the outset of the trial when precluded fromdiscovering this bias or prejudice. The subject matter of the burden of proof is recognized in Zehr as a basic guaranteewhich prospective jurors should be questioned about to determine prejudice. Zehr, 103 Ill. 2d at 477. Moreover, the court inMacri applying the Zehr principles held that prospective jurors should be examined to determine the existence of prejudiceagainst the standard of proof. Macri, 185 Ill. 2d at 37. Therefore, in order to discover prejudice or bias that exists in themind of a juror and to fully protect a defendant's right to an impartial jury, some inquiry into the proposed juror's views onthe defendant's burden of proof in an insanity case is required when requested by defense counsel as a result of a questionby a potential juror as to the burden of proof.

Here, the general questions asked of the potential jurors as to whether they would follow the law and could be fair andimpartial were insufficient to demonstrate that prejudice or bias would be discovered, particularly in the complete absenceof any discussion about the applicable law regarding defendant's burden of proof and standard of proof. Such broad inquiryfailed to call attention to specific matters which might lead the jurors to display disqualifying attitudes and preoccupationsabout the law as it applies to the insanity defense. The supreme court recognized that in cases involving the insanitydefense, a defendant's right to an impartial jury is not adequately protected by a general voir dire regarding whether theprospective jurors would follow the court's instructions on the law. Stack, 112 Ill. 2d at 313. Rather, to fully protect adefendant's rights, the court concluded that some "particular" inquiry into the proposed juror's views on the insanity defenseis required. Stack, 112 Ill. 2d at 313.

Recognizing the need for "particular" inquiry, amendments were made to Rule 431 regarding voir dire. We note that thecommittee comments to amended Rule 431 provide a specific explanation as to the addition of section (b): "The newlanguage is intended to insure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472(1984). It seeks to end thepractice where the judge makes a broad statement of the applicable law followed by a general question concerning thejuror's willingness to follow the law." 177 Ill. 2d R. 431, Committee Comments.

The general or broad statement of the law discussed by the trial court here with prospective jurors, as to the fact that thestandard of proof was proof beyond a reasonable doubt, did not accurately or completely state the law as it applied to thiscase where the insanity defense was raised. Here, the law imposed a burden of proof on defendant. The prospective jurorswere not informed that a burden of proof was imposed by law on the defendant. Here, the law imposed a specific standardof proof on defendant. The prospective jurors were not informed that the standard of proof imposed by law requireddefendant to prove by a preponderance of the evidence that he was not guilty by reason of insanity. Here, the law imposed alesser standard of proof on defendant than it imposed on the State. The prospective jurors were never asked whether theywould follow the law which imposes on defendant a different and lesser burden of proof than the burden of proof imposedby law on the State. The prospective jurors were not asked whether they could find defendant not guilty by reason ofinsanity if defendant proved by a preponderance of the evidence that he was not guilty by reason of insanity.

Although the insanity defense upon which the defendant relied is a well-recognized legal defense, it remains a subject ofintense controversy and has been described as "a defense which is known to be subject to bias or prejudice." People v.Bowel, 111 Ill. 2d 58, 65 (1986). Questions concerning jurors' views on the insanity defense have been determined to be anappropriate area of inquiry on voir dire given the court's recognition that lay persons may regard the defense with suspicion.People v. Cloutier, 156 Ill. 2d 483, 496 (1993). We are mindful that the purpose of voir dire is to ascertain sufficientinformation about beliefs and opinions of prospective jurors so as to allow removal of those members of the venire whoseminds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath. Peoplev. Seuffer, 144 Ill. 2d 482, 500 (1991).

We conclude that defendant's right to an impartial jury is diminished when the possible prejudice of potential jurors againsta lesser burden of proof imposed by law on a defendant is not subject to meaningful inquiry on voir dire. In evaluating thecourt's exercise of discretion, the relevant inquiry is whether the questioning of the jurors reasonably assured that anyprejudice or bias would be discovered. People v. Diggs, 243 Ill. App. 3d at 96. We cannot say here, where the insanitydefense was raised, that the trial court's refusal when requested by defense counsel, as a result of a juror's question to informthe jurors on voir dire of the defendant's burden of proof was a proper exercise of discretion which reasonably assured thatprejudice or bias would be discovered. We limit our decision to require that prospective jurors on voir dire be informed ofthe defendant's burden of proof and standard of proof imposed by law when the insanity defense is raised and we limit thatrequirement to insanity cases where defense counsel requests that prospective jurors be so informed.

B. Motion for Mistrial Due to the State's Subterfuge

Defendant next argues that the trial court erred in failing to grant defendant's motion for a mistrial based on the State'spurposeful subterfuge. Defendant contends that the State used purposeful subterfuge to induce defendant to file asupplemental report by Dr. Schwartz which the State then used during cross-examination to impeach Dr. Schwartz. As aninitial matter, defendant's argument lacks any case law to support this claim of error. Arguments that are raised in adefendant's brief but are unsupported by legal authority are deemed waived. People v. Dinger, 136 Ill. 2d 248 (1990).

Waiver aside, defendant's argument still fails. A trial court's finding in denying a motion for mistrial will not be reversedabsent an abuse of discretion. People v. Wilson, 309 Ill. App. 3d 235, 242 (1999). Here, nothing in the record indicates thatthe State used any subterfuge to induce defendant to produce another report from Dr. Schwartz. In the absence of a record toshow otherwise, this court must presume that the trial court ruled or acted correctly. People v. Majer, 131 Ill. App. 3d 80(1985). Any conversations that took place prior to trial between the State and the defense were not part of the trial recordand cannot, therefore, be reviewed by this court.

Furthermore, any additional reports that defendant produced from Dr. Schwartz and that contradicted Dr. Schwartz'sprevious report were properly used by the State for impeachment. The credibility of a witness is put in issue when thewitness testifies during trial. People v. Bull, 185 Ill. 2d 179 (1999). Here, Dr. Schwartz prepared two reports, one datedOctober 1995, and the other, August 1998. The 1998 report included pertinent information not contained in the 1995 report.As such, the State had a right to cross-examine Dr. Schwartz regarding the discrepancies in the two reports, including theomissions in the 1995 report and the new information in the 1998 report, which was submitted closer in time to trial.

C. Jury Instructions

Defendant next argues that the trial court erred in failing to strike the second paragraph of Illinois Pattern Jury Instruction,Criminal, No. 24-25.01, which stated: "Abnormality manifested only by repeated criminal, or otherwise anti-social conduct,is not mental disease or mental defect." Illinois Pattern Jury Instructions, Criminal, No. 24-25.01 (2d ed. 1981). The IllinoisSupreme Court has held that it is error to include the above instruction where it is not supported by the evidence at trial.People v. Fierer, 124 Ill. 2d 176 (1988). Determination of proper jury instructions lies within the sound discretion of thetrial court, and a reviewing court will not disturb that determination absent a clear abuse of discretion. People v. Patterson,154 Ill. 2d 414 (1992). The evidence in the present case was sufficient to warrant inclusion of the above jury instruction.

Defendant bases his entire argument on the fact that Dr. Seltzberg, during cross-examination by defense counsel, answered"No," when defense counsel stated: "[Defendant] didn't have an abnormality manifested only by repeated criminal orotherwise antisocial conduct, did he?" Defense counsel then proceeded with the next question and stated: "So, he's notexcluded from the mental disease or defect because he's antisocial or he's a persistent criminal?" Dr. Seltzberg answered, "Iwould not equate that, no." Defendant now argues that, based on this exchange alone, the trial court erred in including thesecond paragraph of Illinois Pattern Jury Instruction, Criminal, No. 24-25.01 (2d ed. 1981). We find defendant's argumentunpersuasive.

The evidence at trial, taken as a whole, demonstrates that the inclusion of the second paragraph was warranted. At trial,Todd Rogers testified that defendant was one of his sources for obtaining cocaine and that he had purchased cocaine fromdefendant back in May 1994. Thus, there was evidence of defendant's repeated criminal behavior. In addition, evidence waspresented that defendant had repeated anti-social behavior that was not the product of a mental illness or disease. Dr.Schwartz testified that defendant was depressed, unable to function and that he suffered from severe social and cognitivewithdrawal. Likewise, during direct examination Dr. Seltzberg testified that defendant had impairment of his socialfunctioning and that he suffered from a chronic adjustment disorder. Dr. Seltzberg's limited response to defense counsel'scross-examination was insufficient to warrant excluding the second paragraph of the jury instruction when other evidencesupported its inclusion. As such, the trial court properly included the second paragraph of Illinois Pattern Jury Instructions,Criminal, No. 24-25.01 (2d ed. 1981)

D. Expert Testimony

The remainder of our discussion concerns issues defendant raises with respect to the testimony of Dr. Seltzberg. We addressthese issues as they may arise on retrial. Defendant contends that Dr. Seltzberg improperly testified to a legal conclusionwhen she stated: