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Jury – Bias / Disqualification – Inaccurate / Incomplete Response During Voir Dire

State v. Carlos Delgado, 223 Wis.2d 270, 588 N.W.2d 1 (1999), reversing State v. Delgado, 215 Wis.2d 16, 572 N.W.2d 479 (Ct. App. 1997)
For Delgado: Joseph E. Schubert

Issue/Holding: The supreme court reverses Delgado’s child sexual assault convictions, because a juror’s misleading responses during voir dire indicate her inferred bias against Delgado. During voir dire, the juror failed despite ample opportunity to disclose that she had herself been the victim of a sexual assault as a child. A two-part test applies to this sort of problem: 1) incorrect or incomplete answer to a material question; 2) probability of the juror’s bias. The first part of the test is not disputed, leaving potential bias as the only viable issue. Bias may be actual or inferred; the trial court found no actual bias, and the supreme court determines that that finding is not clearly erroneous. But bias may also be inferred and, though the trial court found no inferred bias, that finding is held to be clearly erroneous. Three factors, among others, are relevant to this inquiry: whether the voir dire question was sufficiently precise; whether other jurors’ responses would have reasonably put the juror on notice that an answer was required; whether the juror became aware of the misleading nature of his/her answer yet fail to notify the court. The court stresses that being a victim alone is not enough to establish bias in a sexual assault case. Nonetheless, the charges against Delgado and the juror’s “experience of a sexual assault as a child are closely connected.” Her experience “understandably might have had a deep and lasting impact on her.” She disclosed the information only “in a moment of anger during jury deliberations.” Since the “circuit court did not carefully examine these facts and circumstances,” its no inferred-bias finding is clearly erroneous. The court of appeals is similarly criticized, for not assessing the circuit courts failure to consider inferred bias.

One court phrases the test for implied bias this way, Sanders v. Lamarque, 9th Cir. No. 02-56893, 2/3/04:

… “Unlike the inquiry for actual bias, in which we examine the juror’s answers on voir dire for evidence that she was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.” United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (citations and internal quotation marks omitted) (emphasis in Gonzalez). Prejudice will be presumed under circumstances in which “the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (citations and internal quotation marks omitted). For instance, federal courts have found implied bias in circumstances “where the juror is apprised of such prejudicial information about the defendant that the court deems it highly unlikely that he can exercise independent judgment even if the juror states he will,” and “[t]he existence of certain relationships between the juror and defendant . . . support such a presumption [of bias].” Id. at 528 (citations omitted). Implied bias will be found only in “exceptional” or “extraordinary” cases. Smith v. Phillips, 455 U.S. 209, 222 n.* (1982) (O’Connor, J., concurring).When establishing juror bias, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” McDonough, 464 U.S. at 556.

Though there is no reason to doubt the continuing viability of Delgado as a matter of statelaw, a constitutional challenge to incomplete juror answers may raise different considerations and a different result dcespite similar facts. See, e.g., Johnson v. Luoma, 6th Cir No. 04-1518, 10/12/05 (juror’s acknowledgement she had previously been crime victim but failure to reveal that she was presently a complainant in a pending DV case not misleading, where questions put to her “so indefinite” and calling “for such subjective responses”). That court also casts doubt on viability of implied-bias doctrine, at least as matter of habeas (therefore, constitutional) review. All of which underscores need for pinpoint, not to say assertive questioning and follow-up on voir dire, so as to isolate issue as matter of state law direct-appeal — a point otherwise made by State v. Marquis O. Gilliam, 2000 WI App 152, ¶14. Indeed, Johnson cites by way of distinction, Dyer v. Calderon, 151 F.3d 970, 979-84 (9th Cir. 1998) (en banc), an implied-bias case in which the juror lied materially and repeatedly, thus fatally undermining the court’s confidence in her ability to decide the case fairly — a juror’s lies with respect to a matter of implied bias, then, may be sufficiently egregious to amount to objective (or actual) bias.

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