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Maryland high court will weigh exception to mandatory voir dire question

Court of Appeals will consider defendant's right not to testify

Maryland’s top court will consider whether a judge’s failure to ask prospective jurors if they respect a criminal defendant’s constitutional right not to testify is rendered harmless if they do in fact take the stand at trial.

The Court of Appeals agreed last week to examine whether such a testimonial exception exists to its January 2020 decision in Kazadi v. State requiring judges to ask would-be jurors, upon the defense’s request, if they can still presume the defendant innocent if that defendant does not testify.

The high court said it will address the issue in hearing the state’s request for the reinstatement of a woman’s assault conviction that a lower court had overturned because the judge had declined to ask the question during voir dire, the pretrial screening of would-be jurors.

The Maryland attorney general’s office stated in court papers that the judge’s failure to ask prospective jurors their views on a defendant’s silence had no effect on the jury’s ultimate finding of Latoya Jordan’s guilt because she testified in her own defense.

The Court of Appeals will hear arguments during its 2021-22 session, which begins next month. The high court is expected to render its decision by Aug. 31, 2022, in the case, State of Maryland v. Latoya Jordan, No. 22, September Term 2021.

In its successful bid for high court review, the state acknowledged the importance of screening out would-be jurors who cannot respect a defendant’s right not to testify. But that pretrial safeguard becomes unnecessary if the defendant testifies at trial, the state added.

“Logically, a defendant who testifies ipso facto cannot be prejudiced by the trial court’s failure to identify in voir dire any prospective jurors who might improperly consider the defendant’s decision to not testify as evidence of guilt,” Assistant Maryland Attorney General Andrew J. DiMiceli wrote. “An inconsequential error is harmless beyond a reasonable doubt.”

In a written response, Jordan’s attorney stated that a judge’s failure to ask the voir dire question is never harmless because it protects a “longstanding fundamental constitutional” principle that “the defendant always has a right to remain silent and not testify.”

“A juror who is unwilling or unable to abide … is disqualified from jury service” even if the defendant ultimately testifies at trial, wrote Stephanie Asplundh, assistant Maryland public defender.

“A person who is unable or unwilling to understand that a defendant has a right to remain silent holds a bias against the defendant that does not simply manifest at the moment of the defendant’s testimony but rather persists throughout the trial,” Asplundh wrote. “That person has a misconception of the criminal justice system and a defendant’s role in it. The inclusion of such a person on a jury is prejudicial – and not inconsequential.”

Jordan was facing trial in Baltimore City Circuit Court on a charge of having assaulted a woman at a summer youth program attended by Jordan’s niece in July 2019.

Having not been asked their views on a defendant’s right not to testify, the jurors were told by Jordan that she never hit the woman but rather picked up a “wet floor sign” to prevent the woman from striking her with a fire extinguisher.

The jury found Jordan guilty of second-degree assault in December 2019. She was sentenced the following month to two years in prison, with all but about 10 days suspended, and two years’ supervised probation, according to online court records.

The Court of Special Appeals overturned the conviction in April, citing the judge’s failure to ask the requested voir dire question on the defendant’s right not to testify. The state then sought review by the Court of Appeals.

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