¶1dissenting:
¶2Because I believe that defendant correctly argues that he was deprived of his constitutional right to be present at trial by his exclusion from the in-chambers voir dire of prospective jurors, I dissent and would reverse and remand for a new trial. The jury in this case was retained for the sentencing phase; the jury found the defendant eligible for the death penalty and sentenced him to death.
¶3Based on defense counsel’s concern regarding publicity on both the present proceedings and on the prior trial and subsequent reversal by this court, the trial court judge suggested that any prospective jurors who indicated knowledge of this case would be questioned further in chambers so as not to taint the remainder of the venire. On review of the record, I note that six venirepersons retired to the judge’s chambers for further questioning along with the court reporter, prosecution counsel and defense counsel. The defendant apparently remained in the courtroom during these proceedings. In any event, he was not present in the judge’s chambers. Each instance of in-chambers voir dire will be detailed prior to a legal analysis of the inherent problems with the approach undertaken by the trial court and accepted by the majority.
¶4While the trial court judge had initially stated that prospective jurors would be taken back to chambers for further questioning when they indicated a knowledge of this case due to prior publicity, the first venireperson to be taken into chambers was questioned for a completely different reason. Venireperson B***, in responding to the judge’s questions, indicated in open court that he had previously served on a jury in a murder case and that “perhaps” this might prevent him from being fair and impartial. At this point the trial court judge requested that he come back to chambers along with the court reporter and counsel. Before leaving the courtroom, the trial court judge indicated to those in the courtroom: “Everybody else stay right where you are.” The following exchange occurred in chambers:
“THE COURT: All right. Let the record reflect that we are back in chambers with counsel and the juror, B***. Okay. Could you elaborate?
A. Well, the trial was approximately 1978. The lady was accused of murdering her husband in bed. We subsequently found her not guilty. It was a case much to my chagrin where first a long period of the trial, it was eleven to one and I being the one holding out for a guilty. And either I sold my conscience down the stream or recognized the handwriting on the wall. It was either going to be a mistrial or I was going to cave in and I caved in.
THE COURT: Well, look at here, that was in 1970, right?
A. ’78.
Q. ’78?
A. Yes.
Q. All right. You had these feelings with regard to your services as a juror in that case. You found — you eventually found the guy not guilty.
You know, there is nothing wrong with finding someone not guilty. At the same time—
A. Well, excuse me. If I may interrupt. It was just my feeling that in my heart the lady was guilty and I think the State’s Attorney did a poor job.
THE COURT: Okay. Well, you know these things happen, okay?
A. But I did what I — I followed the law.
THE COURT: Well, you did the right thing.
Okay. Even though you have these feelings concerning your service as a juror at that time, that is you are supposed to follow the law and so forth and whether it’s guilty or not guilty, you know whatever that’s what you are supposed to do. So, would you be able to follow the law again?
A. Well, I did it once. I could do it again.
Q. Well, that’s all I am asking you to do.
You know what I mean. We are all just human beings. These people are and I am, too, Mr. Bean is, everybody that is over here. Will you be able to listen to the evidence and decide the case on its own merits, is that correct?
A. Um hum.
Q. Okay. Uninfluenced by just — if I am telling you right now that I want you to decide this case on its own merits and the law that I instruct you in this courtroom, would you be able to do that?
A. Yes.
THE COURT: Okay. All right. Fine. Let’s go back out.”
¶5Once back in open court, the in-chambers exchange was not recapitulated on the record for the benefit of the defendant. Rather, the trial court judge continued, as if without interruption, from his previous questioning in open court:
“THE COURT: … But you have not otherwise been involved in any other civil or criminal case, is that correct?
A. No, sir.
Q. Okay. All right. As you sit here now, sir, do you believe you’re the type of person who would be able to give both sides here a fair and impartial trial?
A. I am.
Q. All right. Is there anything in your background that you think we ought to know about here in assessing whether you could be a fair and impartial juror?
A. No, sir.
Q. Do you think you would be fair and impartial?
A. Yes, sir.
Q. Would you follow the law as I instruct you the law is?
A. Yes, sir.”
¶6The record does not indicate that the defendant was ever told of the exchange in chambers. Venireperson B*** remained on the venire as a prospective juror until the defense counsel excused him with the use of a peremptory challenge.
¶7The second venireperson to go back to chambers indicated in open court that she did not think that she could be fair because of the age of the victim (the victim was a senior citizen). The trial court judge stopped her from further comment and took her back to chambers. The court reporter, venireperson N***, defense counsel, and prosecution counsel accompanied the judge to chambers where the following exchange occurred:
“THE COURT: Ms. N***, have a seat.
MS. N***: Okay. The defendant looks very familiar. The more you look at him.
THE COURT: The defendant looks familiar to you.
Could you close that door?
A. I mean, I never met him, but he does look familiar.
THE COURT: He looks like somebody you know or what?
A. I mean, maybe I have seen him, maybe the newspaper picture, something.
THE COURT: All right. What did you talk about when you were talking with your friend?
A. Well, a woman that lives alone, someone attacked the way they did, we thought it was wrong. I would go against — I would go for the State. I wouldn’t go for the defendant at all.
THE COURT: So, you kind of have got your mind made up right now, is that what you are saying?
A. Yes.
THE COURT: Based on what you heard in these discussions—
A. Could have been me, you know, living alone.
THE COURT: So, you don’t feel you could be a fair and impartial juror?
A. No, I couldn’t.
THE COURT: Okay. I am going to excuse you, ….”
¶8Venireperson N*** was then instructed to leave the court via the back door and did not return to the courtroom. Again, the record does not indicate that the defendant was informed about the in-chambers discussion.
¶9The third person to be taken back to chambers for further questioning, venireperson S***, was questioned regarding her concerns about the death penalty. In open court she indicated grave concerns, stating that “I have never felt that I could put any — vote to put anyone to their death.” The following exchange occurred in chambers:
“THE COURT: … All right. Now, I am a little bit confused about your response to my questions, okay?
A. All right.
Q. You said maybe, unique circumstances — I am not sure that I heard what you said here.
What I want to know is, are there some cases in which you could impose capital punishment?
A. No.
Q. If the law said it was appropriate?
A. No.
Q. You just could not do it under any circumstances?
A. I don’t think I could. I really don’t.
…
THE COURT: Okay. All right. You’re excused, ma’am.”
¶10The record is devoid of any indication that the defendant was informed about the proceedings in chambers when the trial court judge and counsel returned to open court.
¶11Venireperson C***, the fourth prospective juror to go to the court’s chambers, was the first venireperson to be questioned based on an indication that he had read some pretrial publicity about this case. The following exchange occurred in chambers:
“THE COURT: Okay sir. Will you tell us about what you heard and saw or—
A. Well, I read in the newspaper that a couple at that time, I think they were living in Chicago, were the victims either that or there were relatives and later on they hired someone to kill her for insurance money.
THE COURT: Um hum. So, that was just a bare bones type of thing?
A. Yes, out of the newspaper article.
THE COURT: Okay. All right. Now, you know just the fact that something is [in] the newspaper, would that prevent you from being fair and impartial here?
A. No, sir.
Q. All right. In other words, they were reporting something in the newspaper, some allegations and so forth. Would you be able to set that aside and judge this case on its own merits?
A. Yes, sir.
Q. That would not affect you, that mere fact that you have seen that in the paper some years ago?
A. No, sir.
Q. Do you remember when this was, how many years ago or how long it was?
A. Oh, it was a while, about—
Q. Okay. So that would have no effect on you, really?
A. No, sir.
Q. Okay. You know, I appreciate you bringing it out, you know. I don’t want to unduly single you out, you know. It just may be you have a better memory than some of the other people, they might have seen it, too.
A. Another thing, I am not sure whether this is the same one, but I think the accused might be a Roman Catholic priest that has been thrown out of the order.
THE COURT: No, I don’t think that is the case.
A. Then that’s not the one.
THE COURT: All right.
A. But the other one, right.
THE COURT: There was something about a priest that I read to you, you know, about someone dressing up in a priest, you know, uniform or robe and so forth. Okay. All right.
Now, didn’t you answer another question, too, I think?
A. Yes, sir.
Q. It says that you would be in favor of imposing the death penalty on every case?
A. No, sir. I thought I answered the one only if there is—
Q. About age or something?
A. No, if criminal evidence against him, if the man is found guilty, yes, in every case—
Q. Okay. Well, what I meant or let me back track. Perhaps you misunderstood me, okay?
A. Okay.
Q. What I was asking at that time is, you know, there are some people that feel sort of like an eye for an eye or a tooth for a tooth, okay? Let me break it down for you.
That some people feel that if a person is guilty of murder and they’re convicted in all cases, no matter what the mitigation is, even if it’s a husband who murders his wife and she is in extreme pain, no matter what, even given that kind of mitigation that always they should be put to death. Is that the way that you feel?
A. Yes, sir.
Q. You do?
A. Yes, sir.
THE COURT: Okay. All right. Thank you very much, sir. You’re excused.”
¶12The trial court judge, court reporter and attorneys returned to open court with no indication that the defendant was ever informed about the in-chambers proceedings.
¶13The trial court judge proceeded to question prospective jurors until the panel of 12 was selected. The court then recessed. When court reconvened the process of choosing two alternates was begun. The prosecution and defense each had two challenges for this portion of the selection process.
¶14Venireperson H*** was the fifth prospective juror to be asked to go back to chambers for further questioning. The trial court judge questioned her about a statement which seemed to indicate that she was against the death penalty in all. cases. The following exchange occurred in chambers:
“THE COURT: Now, the reason why I called you back here, …, is I’m a little confused about your answer. And I realize that you are not placed in this position every day, in people asking you about your belief in capital punishment and so forth.
I want to make sure that I understand what your feelings are with respect to this, okay? I don’t want to have to do this in front of the rest of the jurors, because I — you know, okay? So, let me see if I understand what you are saying.
Are there some cases in which you could vote in favor of capital punishment?
A. I don’t even know.
Q. Let me give you an example. Let’s talk about a case that received some publicity — well, let’s forget about that. I don’t want to give you particular examples. Let’s say it was just the worst crime that you ever heard about, horrible crime in which the Defendant had a terrible record and it was just a rotten no-good crime, rotten no-good Defendant. There is nothing good about him at all; killed ten babies, okay, just horrible. Could you vote to impose capital punishment on such a case?
A. I would feel bad about it, with the kids.
Q. Oh, sure.
Well, I’m asking you, are there any cases in which you could conceive voting in favor of the death penalty, or would you just automatically be against it in every case?
A. No, I don’t think I could be against it in all cases. Since you put it like that, I couldn’t.
Q. Well, that’s what I’m asking.
Now, there will be law that will guide you with respect to this determination and so forth, and mitigation presented, and aggravation presented, should we get to that point. There is by no means, you know — I’m just asking you about this in the event we get to this.
So, there are some cases in which you could vote in favor of capital punishment, is that correct?
A. Yes.
Q. Okay, fine. Let’s go back out there.”
¶15In open court, the trial court judge reiterated the question that asked if in some cases the juror could impose the death penalty. Upon her affirmative answer, the trial court judge proceeded with questioning. The record is void of any reference that would indicate that the defendant was made aware of the in-chambers questioning.
¶16The sixth, and last, venireperson to be questioned in chambers outside the presence of the defendant was venireperson 0***. This was only the second person to be questioned based on an indication that he had read about the crime in the newspapers. The following occurred in chambers, with the court reporter and attorneys, but outside the presence of the defendant:
“THE COURT: … Can you tell us what you remember about this?
A. Well, maybe about a year, two years ago, I remember in the Chicago Tribune, the Sunday Magazine, they did a big article about what happened. And I believe they talked to all of the Defendants that were involved. And my wife’s friend’s father is a retired police detective, and I guess he knew some of the people that were involved in the case, because we all lived in that area, about a half a mile from that.
THE COURT: You are on Keeler?
A. In fact, that same day that the paper came out, we were talking about the case, and we drove over and looked at the house. And the girl told us about what her father said. And we talked about the case between ourselves. It wasn’t until you mentioned the man who dressed up as a priest and went in and then I started remembering all the details.
THE COURT: I see. Let me see if I understand what you are telling me so far. Do you have your mind pretty much made up about this case as we are going into it right now?
A. Probably. We had a lot of discussion on it back then. And I think some of the details were they wanted to kill the woman for the money, her husband was involved in trucking, or something like that, and had large amounts of money, couple hundred thousand dollars, and they wanted that.
THE COURT: All right. So, you have read something about this case. You have discussed it with your friends, is that correct?
A. Um-hum.
THE COURT: Do you believe that you could set aside all that and base your decision on this case and the evidence that you would hear in this courtroom and not be influenced by this outside material?
A. I don’t know.
THE COURT: You don’t know whether or not you could be a fair and impartial juror in this case, in other words, right?
A. That’s right.
THE COURT: Have you discussed this with other jurors?
A. No.
THE COURT: I guess you didn’t have a chance to.
A. No.
THE COURT: I’m going to discharge you from service in this case.”
¶17The trial court judge, court reporter and attorneys returned to open court where the judge continued questioning prospective alternate jurors. Two alternates were chosen following the State’s use of one challenge and the defense counsel’s use of two challenges. Based on the order that the prospective alternates were questioned, venireperson H*** was not chosen as an alternate.
¶18To summarize the proceedings so far, in this capital case six venirepersons were individually questioned in the judge’s chambers outside the presence of the defendant. The court reporter, prosecution and defense attorneys were present. Of the six, four were discharged by the trial court judge for cause, one remained available for the jury but was eventually challenged by the defense counsel, and one remained available as an alternate but, based on the number of alternates needed and the order of those questioned, was ultimately not chosen (she was the sixth prospective alternate questioned, numbers 1, 3, and 4 were challenged, numbers 2 and 5 were selected as alternates).
¶19The majority argues that the defendant does not have a constitutional right to be present at jury selection because the right to a jury only guarantees the right to an unbiased jury. Furthermore, the majority insists that the Supreme Court decisions which address the issue of a defendant’s presence base their holdings on statutory or common law principles absent here. These arguments entirely miss the crux of the issue; for nearly a century it has been well accepted that:
“[a] leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has, at times, and in the cases of misdemeanors, been somewhat relaxed, yet in felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. …
In Hopt v. Utah, 110 U.S. 578 it is said: '… The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins.’ And further: ‘We are of opinion that it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. … That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused,. much less by his mere failure, when on trial and in custody, to object to unauthorized methods.’ ” (Emphasis added.) Lewis v. United States (1892), 146 U.S. 370, 372-74, 36 L. Ed. 1011, 1012-13, 13 S. Ct. 136, 137-38.
¶20While the Supreme Court in Hopt obviously discussed the statutory construction of the Utah law, and in Lewis recognized the common law rights granted to the individual, of particular importance to this case, Hopt and Lewis noted that an individual’s right to be present at trial begins with the impaneling of the jury.
¶21The Supreme Court has not expressly rejected the broad language in Hopt and Lewis in subsequent cases. My review of the cases indicates that although the Court limited the application of its two earlier cases, it did so only while continuing to recognize the very basic concept that the defendant has a right to be present during all stages of his trial.
¶22Diaz v. United States (1912), 223 U.S. 442, 56 L. Ed. 500, 32 S. Ct. 250, dealt with a defendant who absented himself during the examination and cross-examination of two witnesses. Before addressing the issue of the defendant’s voluntary withdrawal from the courtroom, the Court first noted:
“In cases of felony our courts, with substantial accord, have regarded it [the right to be present during trial] as extending to- every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction.” (223 U.S. at 455, 56 L. Ed. at 505, 32 S. Ct. at 254.)
¶23Only after acknowledging this basic right, not disavowing it, did the Supreme Court go on to note that in certain cases the right could be inoperative. The Supreme Court quoted at length from District of Columbia Court of Appeals decision’s reasoning which it found sound:
“ ‘The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries, and turn them into a solemn farce, and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong. And yet this would be precisely what it would do if it permitted an escape from prison, or an absconding from the jurisdiction while at large on bail, during the pendency of a trial before a jury, to operate as a shield.’ ” (223 U.S. at 458, 56 L. Ed. at 506, 32 S. Ct. at 255, quoting Falk v. United States (1899), 15 App. D.C. 446, 460-61.)
¶24The Diaz Court held that a defendant could not purposefully absent himself and then claim that he was wrongly convicted based on his absence. The Court specifically indicated that the prior rulings in Hopt and Lewis did not prevent its present ruling. Diaz, 223 U.S. at 458, 56 L. Ed. at 506-07, 32 S. Ct. at 255.
¶25The Supreme Court next addressed the issue of a defendant’s presence at trial proceedings in Snyder v. Massachusetts (1934), 291 U.S. 97, 78 L. Ed. 674, 54 S. Ct. 330. Snyder involved a defendant’s claim of error based on his absence from the jury’s view of a specific scene. The Snyder Court, specifying that language about a defendant’s presence found in Hopt and Lewis was dictum (291 U.S. at 117 n.2, 78 L. Ed. at 684 n.2, 54 S. Ct. at 336 n.2), without explicitly stating which language, specifically noted that “[njowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow.” (291 U.S. at 106-07, 78 L. Ed. at 678, 54 S. Ct. at 332.) The Court held that, “[s]o far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” (291 U.S. at 107-08, 78 L. Ed. at 679, 54 S. Ct. at 333.) Rather, the defendant’s presence must “bear[ ], or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend.” (291 U.S. at 106, 78 L. Ed. at 678, 54 S. Ct. at 332.) The defendant’s presence is a “privilege [which] may be lost by consent or at times even by misconduct.” 291 U.S. at 106, 78 L. Ed. at 678, 54 S. Ct. at 332.
¶26The Court did not overrule its prior decisions in Hopt and Lewis, wherein the Court had found the defendants’ absence error; rather, the Court said that not every absence is error. In Snyder, the defendant’s presence at the jury’s view would have offered nothing, it would have been “useless.”
¶27In Illinois v. Allen (1970), 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057, the Court was confronted with the question of a defendant’s presence during the voir dire and portions of the trial when “he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.” (397 U.S. at 338, 25 L. Ed. 2d at 356, 90 S. Ct. at 1058.) The trial court had removed defendant from the courtroom; following conviction the defendant asserted that he had been wrongly convicted in his absence. The Court reiterated its unchanged position, as enunciated in Lewis, that “[o]ne of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. [Citation.]” (Emphasis added.) (Allen, 397 U.S. at 338, 25 L. Ed. 2d at 356, 90 S. Ct. at 1058.) However, the Court relied on Mr. Justice Cardozo’s statement in Snyder, wherein the Court held that the privilege could be lost, and held:
“Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights [citation], we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” (397 U.S. at 343, 25 L. Ed. 2d at 358-59, 90 S. Ct. at 1060-61.)
¶28Once again, the Supreme Court recognized the right of a defendant to be present before it concluded that the right could, in certain circumstances, be lost.
¶29Furthermore, the Supreme Court’s decision in United States v. Gagnon (1985), 470 U.S. 522, 84 L. Ed. 2d 486, 105 S. Ct. 1482, is not on point. Gagnon involved an in-chambers conference on the afternoon of the first day of trial between the trial judge, a juror, and defendant Gagnon’s counsel. The defendants, other defendants’ attorneys and prosecution attorneys were excluded. The conference was necessitated by a juror’s concern over defendant Gagnon’s sketching of the jurors during the morning’s proceedings. The judge had already ordered Gagnon, in open court, to cease the practice of drawing. The purpose of the conference, suggested by Gagnon’s lawyer, was to ascertain if the juror was now prejudiced against the defendant and to assure the juror that the defendant had been instructed to refrain from making any further drawings. The Court cited to language in Snyder which indicated that the defendant’s presence is required when there is a reasonably substantial relationship to the opportunity to defend against the charge before it held that there was no such substantial relationship in this case. 470 U.S. at 526-27, 84 L. Ed. 2d at 490, 105 S. Ct. at 1484.
¶30Though no case previously decided by this court is exactly on point, this court has previously addressed the issue of a defendant’s presence at trial. People v. Smith (1955), 6 Ill. 2d 414, presented a case in which the defendant was present through the close of the State’s case but was absent from the remainder of the proceedings. He was convicted in absentia. This court noted both the right of the defendant to be present and that the right could be waived before finding that, in the absence of an affirmative statement that the defendant’s absence was voluntary or that he had waived his right to be present, the case must be remanded for a new trial. This court noted:
“The law is clear that an accused has the right to appear and defend in person as well as by counsel, and that he is entitled to be present and to participate at every stage of the trial. [Citation.] … Where the accused is not present in person, the error is not cured by the presence of his counsel, as his attorney has' no power to waive his right to be present. [Citation.]
It is also well established that this constitutional right to be present at every step taken in his case may, like many other rights, be waived by the prisoner. Thus where a defendant voluntarily absents himself from the courtroom at the moment a verdict is rendered, or runs away from the court after he learns of the verdict, … he is deemed to have waived his right to be present and cannot claim any advantage on account of his absence. [Citations.]” (6 Ill. 2d at 416-17.)
¶31This court concluded that, because the record failed to show that the defendant’s absence was voluntary or that the defendant had waived the right to be present, he was entitled to a new trial. 6 Ill. 2d at 419.
¶32The question of waiver of the right to be present was further addressed by this court in People v. Mallett (1964), 30 Ill. 2d 136. In Mallett the court had taken a brief recess. When the trial resumed, a witness began to answer questions before defense counsel noted that the defendant was not present. The defendant was brought in and the court started to explain what had occurred during his absence. The prosecutor interrupted and asked the defense counsel to stipulate that the testimony would be the same. Both defense counsel and the defendant replied “Yes.” (30 Ill. 2d at 141.) Despite the defendant’s acquiescence, this court noted that:
“[w]aiver assumes knowledge [citation] and it cannot be said that the defendant knowingly waived his right to be present unless he was fully advised as to the testimony which had been heard in his absence.” (30 Ill. 2d at 142.)
¶33See also People v. Davis (1968), 39 Ill. 2d 325 (conviction reversed and remanded for a new trial where entire trial was held in defendant’s absence).
¶34This court’s decision in People v. Martine (1985), 106 Ill. 2d 429, is not contrary to the law already enunciated. In Martine the defendant was being questioned on redirect when the prosecutor objected to the questioning, stating that it was beyond the scope of the cross-examination. At the suggestion of the prosecution, the defendant was asked to leave the courtroom while an offer of proof was made by defense counsel. (106 Ill. 2d at 438.) This court noted its agreement with the defendant that there was no valid reason for her exclusion but held that it did not “violate her constitutional rights, for she was absent only during argument on a question of law, and this did not violate her right to be present at every step of the proceedings.” 106 Ill. 2d at 440.
¶35Martine should not be read so broadly as to suggest that a defendant’s right to be present is satisfied when he is allowed to meet witnesses face-to-face and hear testimony presented against him. This court acknowledged that a defendant has a right to be present in order to protect a substantial right. (Martine, 106 Ill. 2d at 439.) Only when a defendant’s presence would be useless or when the court is addressing only a question of law to which the defendant could add nothing is the defendant’s presence not required. (106 Ill. 2d at 440.) The defendant’s presence during voir dire is neither useless nor a matter involving only a question of law.
¶36Moreover, the Illinois Constitution offers the following protection:
Ҥ8. Rights After Indictment
In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation and have a copy thereof; to meet the witnesses face to face and to have process to compel the attendance of witnesses in his behalf; and to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” Ill. Const. 1970, art. I, §8.
¶37The right to be present is separate and distinct from the right to confront witnesses. Though, as both the United States Supreme Court and this court have held, the right may be waived or may not attach to certain proceedings where presence would be useless, neither this court nor the United States Supreme Court has ever held that the selection of the jury was such a “useless” portion of the proceedings. As noted by the Supreme Court in Hopt and Lewis, discussed above, and never disavowed, the selection of the jury is crucial. In the hands of these 12 people may lie the very life of the defendant. This court is not here confronted with a decision of law over which the defendant may have no input — were that so, the process of impaneling a jury would not require the extensive questioning process used in voir dire and we would merely choose the first 12 people who happen to walk into the room. The present case, on review of the record, does not give indication of a knowing and intelligent waiver by the defendant or of such conduct on the part of the defendant as to require his removal. He was simply not included in the in-chambers voir dire process.
¶38While the majority argues that of the prospective jurors questioned, the defendant could not have had any impact upon the selection process because most were discharged for cause by the court, this argument begs the question. The end does not justify the means used. Only after the right was denied are we able to say with certainty that the defendant would have had no input as to the four. Such hindsight may not excuse the denial of such an important right.
¶39Even one juror’s discharge without the defendant’s full presence is too much, as this case clearly shows. Venireperson B***, discussed at length above, was excused with the exercise of a peremptory challenge by the defendant’s own counsel. This action was taken without benefit of the defendant’s full input into the selection process. It is well accepted that the selection of a jury is based extensively on subjective analysis. Had the defendant been present for all phases of the voir dire, it is quite possible that the juror’s demeanor and answers would have caused the defendant to persuade his attorney not to exercise a peremptory challenge and to keep the venireperson on the jury. In a capital case, where one juror’s vote may prevent the imposition of the death penalty, this court should not conclude that a defendant’s absence when even a single juror is questioned may be allowed. Neither can this be called harmless error, for a basic right guaranteed by our Constitution and our system of justice was denied the defendant without his waiver or fault. The defendant lacked vital information on which to assist his counsel with the selection of the jury as to venirepersons B*** and H***.
¶40Errors of such a constitutional magnitude must not be negated based on a misconstruction of the issue. I do not deny that a defendant is entitled to an impartial jury. I note, however, that that is not the crux of the issue before this court. The defendant was denied his right to be present during all proceedings against him. The denial of that right is not cured or corrected by arguing instead that it does not matter because he had an impartial jury. It does not matter that the defendant had an impartial jury. The defendant’s presence is vital to our system of justice and I therefore dissent.