Juror Bias – Assessment, Generally
A claim of juror bias relies requires proof of the two-step test articulated by State v. Wyss, 124 Wis. 2d 681, 726, 370 N.W.2d 745 (1985): “(1) that the juror incorrectly or incompletely responded to a material question on voir dire; and if so, (2) that it is more probable than not that under the facts and circumstances surrounding the particular case, the juror was biased against the moving party,” ¶32.
The first step asks “whether the question incorrectly or incompletely answered is material,” ¶33. In making this determination, “it is important to consider follow-up questions that would likely have been asked had the juror answered the asked question correctly. … Stated another way, if the question the juror incompletely and/or incorrectly answered is of consequence to the determination of bias, it is material,” ¶35.
Juror bias may take one of three forms: statutory (not relevant, hence not discussed, in this case); subjective; objective. “(W)hether a juror is subjectively biased is focused on the specific juror’s state of mind,” and may be revealed through either explicit assertion or, more frequently, through the juror’s “demeanor,” ¶¶36-37. Objective bias shifts the inquiry from the specific juror’s state of mind to a reasonable person in the juror’s position, ¶38.
When the issue involves a claim of objective bias involving a juror who wasn’t forthcoming during voir dire, the following, non-exclusive factors are used to determine objective bias:
(1) did the question asked sufficiently inquire into the subject matter to be disclosed by the juror;
(2) were the responses of other jurors to the same question sufficient to put a reasonable person on notice that an answer was required;
(3) did the juror become aware of his or her false or misleading answers at anytime during the trial and fail to notify the trial court?
¶39, quoting, State v. Faucher, 227 Wis. 2d 700, 727, 596 N.W.2d 770 (1999).
Prospective juror’s failure in sexual assault case to correctly or completely answer voir dire question about his or her experience as sexual assault victim doesn’t in and of itself establish bias, ¶40, citing State v. Delgado, 223 Wis. 2d 270, 282, 558 N.W.2d 1 (1999). Standard of review discussed: sufficiency of juror’s answers reviewed deferentially, under clearly erroneous test, but materiality of question reviewed de novo, ¶29; finding as to subjective bias reviewed deferentially, ¶30; objective bias presents mixed question of fact and law, id.
Juror Bias, Case at Hand (Child Sexual Assault)
Juror’s failure to reveal during voir dire her own, multiple experiences as as sexual assault victim (including as a child) didn’t support trial court’s finding, after post-trial hearing, that she was biased.
- Material question. The voir dire question – whether anyone had gone to court to testify as a witness – was material; had the juror answered truthfully, her status as an assault victim would have come out, ¶¶41-43. (Although the trial court informed the panel that “one of the questions is going to be . . . have anyone of you been a victim of sexual assault,” that question was never asked, ¶60 n. 25.)
- Subjective bias. The juror didn’t acknowledge bias against Funk; the question is whether bias was revealed through her “demeanor, with a determination of bias resting on whether the circuit court finds the juror credible,” ¶46. Although the trial court found subjective bias, that finding was based on an incorrect standard, and is clearly erroneous. “A finding of subjective bias must be based on factual findings that show the specific juror’s state of mind. … No such findings were made,” ¶48.
- Objective bias. The jurors weren’t asked at voir dire whether any had been a victim of sexual assault. Nor was this particular juror asked at the post-trial hearing why she failed to answer the question that was asked (whether any juror had testified as a witness), something that was the defense burden, ¶57. “In other words, we are unable to place a ‘reasonable person’ in Tanya G.’s ‘position’ because we do not know the relevant factors that relate to her ‘position,'” ¶58.
¶63 In sum, jurors are presumed impartial, and Funk had the burden of rebutting this presumption and proving Tanya G.’s bias in this case. Louis, 156 Wis. 2d at 478. We agree with Judge Lundsten that the questions asked of Tanya G. were “so inartfully posed that Tanya G.’s non-answers cannot reasonably be used to support a finding of objective bias.” Funk, No. 2008AP2765-CR, unpublished order, at 11. As such, Funk has not met his burden because there is no proof that a reasonable juror in Tanya G.’s position could not be impartial. Without such proof, the only basis on which we could conclude that she was objectively biased is to conclude she was per se biased against Funk. Delgado forbids such a per se bias rule based solely on having been the victim of sexual assault. Delgado, 223 Wis. 2d at 285. Consequently, we hold that Funk has not met his burden to prove that Tanya G. was objectively biased. Stated otherwise, the facts necessary to ground a circuit court’s reasonable legal conclusion that Tanya G. was objectively biased were not developed in this case. Therefore, the circuit court erred as a matter of law in concluding that a reasonable person in Tanya G.’s position could not be impartial.
A narrow, fact-specific result, but the larger principle is readily discerned: make a clear record, at voir dire in the first instance, at the postconviction hearing in the second. There’s no substitute for pinpoint questioning, and as this decision shows, you can’t expect the court to fill in any gaps. Here’s an example: Dyer v. Calderon, 151 F.3d 970, 982 (9th Cir. 1998) (Juror asked, “Have you or any of your relatives or close friends ever been the victim of any type of crime?,” and answered no, despite the fact her brother had been murdered. Habeas court found that she had lied, and granted relief, because “The individual who lies in order to improve his chances of serving has too much of a stake in the matter to be considered indifferent.”) Variation on this theme: State v. Gilliam, 2000 WI App 152, 238 Wis.2d 1, 615 N.W.2d 660 (counsel’s failure to ask follow-up questions of juror Hagen left court with “no explanation from Hagen of what he understood defense counsel to be asking, or what he meant by his answer. … In order to establish bias, the questions to the jurors must be precise, and ambiguities must be clarified with follow-up questions. That did not happen with respect to Hagen.”)