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Jury – Selection – Bias / Disqualification — Doubtful Fairness: Equivocal Expression

State v. Vance Ferron, 219 Wis.2d 481, 579 N.W.2d 654 (1998), affirming, as modified, 214 Wis. 2d 268, 570 N.W.2d 883 (Ct. App. 1997)
For Ferron: Jane Krueger Smith

Issue: Whether a prospective juror’s equivocations during voir dire required that he be struck for cause.

Holding: The trial court erred in refusing to strike for cause a potential juror who acknowledged only that he “probably” could set aside his opinion that a truly innocent defendant would testify.

The trial court determination of juror dismissal for cause based on bias is reviewed deferentially. The court overrules its prior intimation, Nyberg v. State, 75 Wis. 2d 400, 249 N.W.2d 524 (1997), that a trial court must remove a juror upon reasonable suspicion of bias. Instead, bias must be “manifest” before the trial court’s determination may be overruled. Thus, a trial court has “broad discretion in this area of law.” The court employs a new test for juror bias: “(A) prospective juror’s bias is ‘manifest’ whenever a review of the record: (1) does not support a finding that the prospective juror is a reasonable person who is sincerely willing to put aside an opinion or prior knowledge; or (2) does not support a finding that a reasonable person in the juror’s position could set aside the opinion or prior knowledge.” Application here: The trial court erred as matter of law in failing to strike the juror. Despite instructional efforts, the juror persisted in expressing a belief that a defendant who fails to testify is guilty. At most, he “probably” could set this opinion aside.. In sum, the juror failed “to indicate a sincere willingness to set aside his bias.” The court cautions, however, that its conclusion might be different had the juror’s bias not involved “such an essential constitutional right” as the privilege against compelled self-incrimination. And, a three-justice concurrence underscores this point: “We are not here dealing with whether a juror can accept the court’s instructions on some mundane area of law. We are dealing with fundamental rights.” Bablitch, J., conc. (But the holding also advises circuit courts “to err on the side of striking jurors who appear to be biased,” even if the failure to strike would be upheld on appeal.) The court declines the state’s invitation to overrule State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), a decision which requires a new trial, “(b)ecause Ferron was compelled to use one of his statutorily granted peremptory challenges to correct the circuit court’s error of law.”

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